Fall 2024 RC Reader — John Inazu (2024)

These are the combined readings for Religion and the Constitution (Fall 2024). I have edited the cases and other materials.

United States v. Kuch

288 F. Supp. 439 (D.D.C. 1968)

Gesell, District Judge.

Judith H. Kuch, who avers she is an “ordained minister of the Neo-American Church,” stands indicted in a seven-count indictment for unlawfully obtaining and transferring marijuana and for the unlawful sale, delivery and possession of LSD. . . .

Defendant contends that the criminal penalties provided for violation of these Acts may not be applied as to her for several reasons relating in various ways to her basic contention that the laws impinge on her constitutional right in the free exercise of her alleged religion. A hearing was held and testimony and exhibits received in support of Kuch’s religious claims. She presented no subjective evidence as to her individual beliefs but chose to rely on her office in the Church and proof as to the requirements and attitudes of the Church as constituted. The Court has concluded that the facts and authorities discussed below do not support her contentions for several separate and independent reasons.

The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area. There are some 300 Boo Hoos throughout the country. In order to join the church a member must subscribe to the following principles:

(1) Everyone has the right to expand his consciousness and stimulate visionary experience by whatever means he considers desirable and proper without interference from anyone;

(2) The psychedelic substances, such as LSD, are the true Host of the Church, not drugs. They are sacramental foods, manifestations of the Grace of God, of the infinite imagination of the Self, and therefore belong to everyone;

(3) We do not encourage the ingestion of psychedelics by those who are unprepared.

Building on the central thesis of the group that psychedelic substances, particularly marijuana and LSD, are the true Host, the Church specifies that “it is the Religious duty of all members to partake of the sacraments on regular occasions.”

A Boo Hoo is “ordained” without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a “spiritual crisis,” administers drugs and interprets the Church to those interested. The Boo Hoo of the Georgetown area of Washington, D.C., testified that the Church was pantheistic and lacked a formal theology. Indeed, the church officially states in its so-called “Catechism and Handbook” that “it has never been our objective to add one more institutional substitute for individual virtue to the already crowded lists.” In the same vein, this literature asserts “we have the right to practice our religion, even if we are a bunch of filthy, drunken bums.” The members are instructed that anyone should be taken as a member “no matter what you suspect his motives to be.”

The dividing line between what is, and what is not, a religion is difficult to draw. The Supreme Court has given little guidance. Indeed, the Court appears to have avoided the problem with studied frequency in recent years. Obviously this question is a matter of delicacy and courts must be ever careful not to permit their own moral and ethical standards to determine the religious implications of beliefs and practices of others. Religions now accepted were persecuted, unpopular and condemned at their inception.

Subtle and difficult though the inquiry may be, it should not be avoided for reasons of convenience. There is need to develop a sharper line of demarcation between religious activities and personal codes of conduct that lack spiritual import. Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them when participating in antisocial conduct that otherwise stands condemned. In a complex society where the requirements of public safety, health and order must be recognized, those who seek immunity from these requirements on religious grounds must at the very least demonstrate adherence to ethical standards and a spiritual discipline.

The defendant has sought to have the Church designated a religion primarily by emphasizing that ingestion of psychedelic drugs brings about a religious awareness and sharpens religious instincts. There was proof offered that the use of psychedelic drugs may, among other things, have religious implications. Various writings on the subject were received in evidence and testimony was taken from two professors, not members of the Church but having theological interest in the subject, who had themselves taken drugs experimentally and had studied religious manifestations of psychedelic drug ingestion.

Just as sacred mushrooms have for 2,000 years or more triggered religious experiences among members of Mexican faiths that use this vegetable, so there is reliable evidence that some but not all persons using LSD or marijuana under controlled conditions may have what some users report to be religious or mystical experiences. Experiments at Harvard and at a mental institution appear to support this view and there are specific case histories available, including the accounts of the professors who testified as to their personal experience under the influence of psychedelic drugs. Researchers have found that religious reactions are present in varying degrees in the case of from 25 percent to 90 percent of those partaking. A religious reaction appears most frequently among users already religiously oriented by training and faith. While experiences under the influence have no single pattern, a religious reaction includes the following effects. Sometimes senses are sharpened and apparently a mixed feeling of awe and fear results. There may be mystery, peace, and a sharpening of impressions as to all natural objects, perhaps even something akin to the vision Moses had of a burning bush as described in Exodus. That there may be wholly different effects upon given individuals is equally clear. Psychotic episodes may be initiated, leading to panic, delusions, hospitalization, self-destruction and various forms of antisocial and criminal behavior, as will be later indicated in more detail.

While there may well be and probably are some members of the Neo-American Church who have had mystical and even religious experiences from the use of psychedelic drugs, there is little evidence in this record to support the view that the Church and its members as a body are motivated by or associated because of any common religious concern. The fact that the use of drugs is found in some ancient and some modern recognized religions is an obvious point that misses the mark. What is lacking in the proofs received as to the Neo-American Church is any solid evidence of a belief in a supreme being, a religious discipline, a ritual, or tenets to guide one's daily existence. It is clear that the desire to use drugs and to enjoy drugs for their own sake, regardless of religious experience, is the coagulant of this organization and the reason for its existence.

Reading the so-called “Catechism and Handbook” of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a “martyrdom record” to reflect his arrests. The Church symbol is a three-eyed toad. Its bulletin is the “Divine Toad Sweat.” The Church key is, of course, the bottle opener. The official songs are “Puff, the Magic Dragon” and “Row, Row, Row Your Boat.” In short, the “Catechism and Handbook” is full of goofy nonsense, contradictions, and irreverent expressions. There is a conscious effort to assert in passing the attributes of religion but obviously only for tactical purposes. Constitutional principles are embraced wherever helpful to the cause but the effect of the “Catechism and Handbook” and other evidence as a whole is agnostic, showing no regard for a supreme being, law or civic responsibility.

The official seal of the Church is available on flags, pillow cases, shoulder patches, pill boxes, sweat shirts, rings, portable “communion sets” with chalice and cup, pipes for “sacramental use,” and the like. The seal has the three-eyed toad in the center. The name of the Church is at the top of the seal and across the bottom is the Church motto: “Victory over Horsesh*t!” The Court finds this helpful in declining to rule that the Church is a religion within the meaning of the First Amendment. Obviously the structure of this so-called Church is such that mere membership in it or participation in its affairs does not constitute proof of the beliefs of any member, including Kuch. In short, she has totally failed in her burden to establish her alleged religious beliefs, an essential premise to any serious consideration of her motions to dismiss.

Assuming, however, that the Neo-American Church is a genuine religion and that Kuch subscribes fully to its doctrines and thus may invoke the full constitutional guarantees for free religious expression, her contentions are still without merit. The Constitution protects the right to have and to express beliefs. It does not blindly afford the same absolute protection to acts done in the name of or under the impetus of religion.

The practices of the Neo-American Church involving the use, possession, transfer and sale of marijuana and LSD are contrary to the criminal law. Starting with an acceptance of Kuch’s religious claim, it is necessary to determine whether the legislation under which defendant stands indicted unduly infringes her freedom to practice what she asserts are religious beliefs. As the Court has instructed in the flag salute cases, freedom of worship is “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”

Defendant misconceives the Constitution and the decisions when she claims in effect an unbridled right to practice her beliefs. The public interest is paramount and if properly determined the Congress may inhibit or prevent acts as opposed to beliefs even where those acts are in accord with religious convictions or beliefs. If individual religious conviction permits one to act contrary to civic duty, public health and the criminal laws of the land, then the right to be let alone in one's belief with all the spiritual peace it guarantees would be destroyed in the resulting breakdown of society. There is abroad among some in the land today a view that the individual is free to do anything he wishes. A nihilistic, agnostic and antiestablishment attitude exists. These beliefs may be held. They may be expressed but where they are antithetical to the interests of others who are not of the same persuasion and contravene criminal statutes legitimately designed to protect society as a whole, such conduct should not find any constitutional sanctuary in the name of religion or otherwise.

Mormons were not permitted to practice polygamy. Nor would the Constitution protect the practice of religions requiring infanticide, the killing of widows, or temple prostitution, as some religions have done in the past. The vital significance of the constitutional protection of religion will be diluted by a degree of tolerance that accepts the practice of acts which leave society helpless to protect itself.

Unfortunately we have been gradually drifting away from this pristine view taken by our founding fathers that religious beliefs were to be upheld at all cost but that acts induced by religious beliefs could be prohibited where Congress spoke in the interests of society as a whole. Recent decisions of the Supreme Court suggest that there must be a balancing of the legislative end to be achieved against the effect of the legislation on practices and hence the acts of the members of a particular religion. This is but a way of saying that each case will depend on its own facts and a balancing of factors as the members of the court may see them at any given point in time. No United States District Judge who must act within the confines of a record and available judicial time has the wisdom or means of doing adequately what the cases appears to require. It is to be hoped that there will develop a constitutional doctrine in this field that more closely approximates that contemplated by the framers of the Constitution and that leaves the balancing function in all but obvious cases of clear abuse in the hands of the Congress, where it belongs. Be that as it may, the Court has carefully sought to apply prevailing doctrine in this field. The Court concludes that under any common sense view of undisputed facts the full enforcement of the statute here involved is necessary in the public interest and the unintended but obvious restrictions on the practices of defendant’s church are wholly permissible.

There is substantial evidence that the use of marijuana creates a health hazard, is often the first step toward serious drug addiction in the progression to heroin, and is frequently associated with the commission of non-drug crimes, often crimes of violence. While all its effects are still unknown and the reactions of users differ, depending on emotional, psychological and frequency-of-use factors, the drug marijuana may often predispose to antisocial behavior and precipitate psychotic episodes. Among other reactions, hallucinations and delusions, impairment of judgment and memory, and confusion and delirium are common. Among chronic users, extremely violent aggressive conduct is manifested. Medical experts, narcotic experts, law enforcement officials, psychologists and proponents of freer marijuana use are not in accord but there is a very substantial body of opinion among individuals in each of these categories which supports the implications of marijuana use summarized above.

As part of her motion to dismiss the indictment on religious grounds, defendant has also made what may be broadly described as the “peyote” argument. The claim is that she is denied equal protection in the constitutional sense because members of another religion are permitted under the narcotic laws to use peyote, a similar and at least as harmful an hallucinatory drug.

In People v. Woody, the California Supreme Court held that a state statute prohibiting the unauthorized use of peyote could not constitutionally be applied to a member of the Native American Church. The Native American Church, made up of from 30,000 to 250,000 American Indians, had a “long history” of the use of peyote. The court found that:

Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious. . . .

Against the “virtual inhibition of the practice of defendants’ religion” imposed by the state statute, the California court balanced the state’s interest in enforcing the statute in order to determine whether that interest was so “compelling” as to necessitate “an abridgement of defendants’ First Amendment right.” The court found that the record did not support “the state’s chronicle of harmful consequences of the use of peyote” and held in favor of an exemption for the defendant members of the Native American Church.

Defendant asserts that marijuana is less harmful, or no more harmful, than peyote and that under the reasoning in Woody, she is entitled to an exemption from the Marijuana Tax Act. This Court, however, is not bound by decisions of the California Supreme Court. While it may appear incongruous that the court found, on the one hand, that the state had not shown that peyote had harmful consequences and yet found, on the other hand, that peyote “engenders hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia”—that problem is not before the Court.

The Neo-American Church is not an establishment of religion and defendant Kuch has not sustained her burden of demonstrating that her religious beliefs require her to ingest psychedelic drugs. Accepting her contrary contentions on these issues, however, she still cannot prevail for the statutes under which she stands indicted are in aid of a substantial government interest and have a rational and constitutional basis. These laws, enacted to preserve public safety, health and order, will be enforced. On the proofs before the Court the statutes are unrelated to the suppression of religion or religious beliefs and there is no denial of defendant’s rights under the Constitution of the United States.

The Essential Rights and Liberties of Religion in the American Constitutional Experiment

John Witte, Jr.

71 Notre Dame L. Rev. 371 (1996)

Thomas Jefferson once described the religion clauses of the First Amendment to the United States Constitution as a “fair” and “novel experiment” in religious rights and liberties. The religion clauses, declared Jefferson, defied the millennium-old assumptions inherited from Western Europe—that one form of Christianity must be established in a community, and that the state must protect and support it against other religions. The religion clauses, Jefferson argued, suffer neither prescriptions nor proscriptions of religion. All forms of Christianity must stand on their own feet and on an equal footing with all other religions. Their survival and growth must turn on the cogency of their word, not the coercion of the sword, on the faith of their members, not the force of the law.

This bold constitutional experiment in religious liberty, though neither as fair nor as novel as Jefferson believed, remains intact and in progress in the United States. The First Amendment religion clauses, drafted in 1789 and ratified in 1791, remain the predominant federal constitutional text to govern religious rights and liberties in America. Principal governance of this experiment—initially left to state legislatures and state courts—has since the 1940s fallen largely to the United States Supreme Court and lower federal courts.

The American experiment in religious liberty initially inspired exuberant rhetoric throughout the young republic and beyond. Elhanan Winchester, a Baptist preacher turned Universalist, declared proudly to a London audience in 1789:

There is but one country in the world where liberty, and especially religious liberty, is so much enjoyed as in these kingdoms, and that is the United States of America: there religious liberty is in the highest perfection. All stand there on equal ground. . . . A man may be chosen there to the highest civil offices, without being obliged to give any account of his faith, subscribe [to] any religious test, or go to the communion table of any church.

Dozens of such confident endorsem*nts of the American experiment in religious rights and liberties can be found in the sermons, pamphlets, and monographs of the young American republic.

Today, the American experiment inspires far more criticism than praise. The United States does “embosom” all religious sects and denominations, as [Yale] President [Erza] Stiles predicted, not only from Christendom, but from around the world. American citizens do enjoy remarkable freedom of thought, conscience, and belief—too much freedom, according to some commentators. But the laboratory of the United States Supreme Court, which has directed the American experiment for the past fifty years, no longer inspires confidence. Not only have the Court’s recent decisions on the rights of religious minorities in America—particularly Jews, native American Indians, and Muslims—evoked withering attacks in the popular and professional media. The Court’s entire record on religious liberty has become vilified for its lack of consistent and coherent principles and its uncritical use of mechanical tests and empty metaphors. “Religion Clause jurisprudence,” Mary Ann Glendon [writes,]

Religion clause jurisprudence has been described on all sides, and even by Justices themselves, as unprincipled, incoherent, and unworkable. . . . [T]he Court must now grapple seriously with the formidable interpretive problems that were overlooked or given short shrift in the past. The task is an urgent one, for it concerns nothing less than the cultural foundations of our experiment in ordered liberty.

The United States Supreme Court is not the only body that is now “grappling” with the experiment. In the past few years, the testing ground seems to be shifting away from the courts to the legislatures, and away from the federal government to the states—a trend encouraged by several recent Supreme Court opinions. Congress has issued a number of acts to defend the free exercise rights of various religious individuals and groups, and in the Religious Freedom Restoration Act [RFRA] to define the appropriate free exercise test to be used in future cases. At the same time, state legislatures and courts have become bolder in conducting their own experiments in religious liberty that seem calculated to revisit, if not rechallenge, prevailing Supreme Court interpretations of the establishment and free exercise clauses. These recent trends have served to exacerbate the indeterminacy of the American experiment.

When an experiment becomes a “kind of wandering inquiry, without any regular system of operations,” wrote Francis Bacon, the “father” of the experimental method, “prudence commends three correctives.” First, said Bacon, we must “return to first principles and axioms,” reassess them in light of our experience, and “if necessary refine them.” Second, we must assess “our experience with the experiment” in light of these first principles, to determine where “the experiment should be adjusted.” Third, we must “compare our experiments” and experiences with those of fellow scientists, and where we see in that comparison “superior techniques,” we must “amend our experiments” and even our first principles accordingly. Though Bacon offered these prudential instructions principally to correct scientific experiments that had gone awry, his instructions commend themselves to legal and political experiments as well—as he himself sought to demonstrate in seventeenth century English law and politics.

This Article applies Bacon’s prudential instructions to the American constitutional experiment in religious rights and liberties—an experiment that today is, indeed, “wandering, without any regular system of operations.” Applying Bacon’s first instruction, Part I distills from the diverse theological and political traditions and experiences of the eighteenth century the most widely embraced “first principles” of the American constitutional experiment—the “essential rights and liberties of religion,” to use eighteenth century parlance. These principles included liberty of conscience, free exercise of religion, confessional and structural pluralism, equality of religions before the law, separation of the institutions of church and state, and disestablishment of religion. . . .

This Article is more expansionist than revisionist in inspiration and methodology. The essential rights and liberties of religion analyzed and advocated herein are not new creations. But I ground these principles in several eighteenth century sources and twentieth century international prototypes that have not been part of the conventional discussion. I also strip them of the thick accretions of recent casuistry that have obscured their essential value, vigor, and validity. The call for an integrated framework of religious liberty in America is also not new. But I warn against efforts to reduce the religion clause guarantees to one or two principles alone—even the vaunted principles in vogue today, such as neutrality, separation, equality, or accommodation. Religion is simply too vital and valuable a source of individual flourishing and social cohesion to be left to such primitive legal defenses. As both eighteenth century American writers and twentieth century international jurists have repeatedly argued, a variety of principles must be integrated into an interlocking and interdependent shield of religious liberties and rights for all. The principles of liberty of conscience, free exercise, pluralism, equality, separation, and disestablishment form the essential amalgam of any such shield.

I. The “Genesis” of the American Constitutional Experiment

The religion clauses of the state constitutions and of the First Amendment, forged between 1776 and 1791, express both theological and political sentiments. They reflect both the convictions of the religious believers of the young American republic and the calculations of their political leaders. They manifest both the certitude of leading eighteenth century theologians such as Isaac Backus and John Witherspoon, and the skepticism of such contemporaneous philosophers as Thomas Jefferson and Thomas Paine.

The American experiment in religious rights and liberties cannot, in my view, be reduced to the First Amendment religion clauses alone, nor can the intent of the framers be determined simply by studying the cryptic record of the debates on these clauses in the First Session of Congress—however valuable that source is still today. Not only are these Congressional records incomplete, but the First Amendment religion clauses, by design, reflect only a small part of the early constitutional experiment and experience. The religion clauses, on their face, define only the outer boundaries of appropriate government action respecting religion—government may not prescribe (“establish”) religion nor proscribe (“prohibit”) its exercise. Precisely what governmental conduct short of outright prescription or proscription of religion is constitutionally permissible is left open for debate and development. Moreover, the religion clauses on their face bind only the federal government (“Congress”), rendering prevailing state constitutional provisions, and the sentiments of their drafters, equally vital sources of original intent. Finally, the drafters of the religion clauses urged interpreters to look not to the drafters’ intentions, but, in James Madison’s words, “to the text itself [and] the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses.” The understanding of the state conventional delegates was derived from their own state constitutional experiments and experiences, which are reflected in contemporaneous pamphlets, sermons, letters, and speeches. A wide range of eighteenth century materials must thus be consulted to come to terms with the prevailing sentiments on religious rights and liberties in the young American republic.

A. Four Views of Religious Rights and Liberties in the Late Eighteenth Century

Within the eighteenth century sources at hand, two pairs of theological perspectives on religious liberties and rights were critical to constitutional formation: those of congregational Puritans and of free church evangelicals. Two pairs of contemporaneous political perspectives were equally influential: those of enlightenment thinkers and civic republicans. Exponents of these four perspectives often found common cause and used common language, particularly during the Constitutional Convention and ratification debates. Yet each group cast its views in a distinctive ensemble, with its own emphases and its own applications.

It must be emphasized that this is a heuristic classification, not a wooden taxonomy, of the multiple opinions on religious rights and liberties in the early republic. Other views besides these circulated, and other labels besides these were (and can be) used to describe these four views. Moreover, individual writers of the eighteenth century often straddled two or more perspectives, shifted their allegiances or alliances over time, or changed their tones as they moved from formal writing to the pulpit or to the political platform. John Adams, for example, expounded both Puritan and civic republican views. John Witherspoon moved freely between evangelical and civic republican camps. Jonathan Edwards, at least in his political and ethical writings, toed (and moved) the line between old light Puritan and new light evangelical perspectives. James Madison’s early writings on religious liberty had a strong evangelical flavor; his political speeches in the early sessions of Congress often pulsed with civic republican sentiments; his later writings, particularly after his Presidency, were of increasingly firm enlightenment stock.

Nonetheless, exponents of these four views offered distinctive and distinguishable teachings on religious rights and liberties, and collectively had the most influence on constitutional formation. The so-called original intent of the American constitutional framers respecting government and religion cannot be reduced to any one of these views. It must be sought in the tensions among them and in the general principles that emerge from their interaction.

1. Puritan Views

The New England Puritans were the direct heirs of the theology of religious liberty taught by European Calvinists. They had revised and refined this European legacy through the efforts of John Winthrop, John Cotton, Cotton Mather, Jonathan Edwards, Charles Chauncy, Jonathan Mayhew, and a host of other eminent writers. Since the 1630s, the Puritans had dominated the New England colonies.

The Puritans who wrote on religious liberties and rights were concerned principally with the nature of the church, of the state, and of the relationship between them. They conceived of the church and the state as two separate associations, two seats of Godly authority in the community. Each institution, they believed, was vested with a distinct polity and calling. The church was to be governed by pastoral, pedagogical, and diaconal authorities who were called to preach the word, administer the sacraments, teach the young, care for the poor and the needy. The state was to be governed by executive, legislative, and judicial authorities who were called to enforce law, punish crime, cultivate virtue, and protect peace and order.

In the New England communities where their views prevailed, the Puritans adopted a variety of safeguards to ensure the basic separation of the institutions of church and state. Church officials were prohibited from holding political office, serving on juries, interfering in governmental affairs, endorsing political candidates, or censuring the official conduct of a statesman. Political officials, in turn, were prohibited from holding ministerial office, interfering in internal ecclesiastical government, performing sacerdotal functions of clergy, or censuring the official conduct of a cleric. To permit any such officiousness on the part of church or state officials, Governor John Winthrop averred, “would confound those Jurisdictions, which Christ hath made distinct.”

Although church and state were not to be confounded, however, they were still to be “close and compact.” For, to the Puritans, these two institutions were inextricably linked in nature and in function. Each was an instrument of Godly authority. Each did its part to establish and maintain the community. The Puritans, therefore, readily countenanced the coordination and cooperation of church and state.

State officials provided various forms of material aid to churches and their officials. Public properties were donated to church groups for meeting houses, parsonages, day schools, and orphanages. Tax collectors collected tithes and special assessments to support the ministers and ministry of the congregational church. Tax exemptions and immunities were accorded to some of the religious, educational, and charitable organizations that they operated. Sabbath day laws prohibited all forms of unnecessary labor and uncouth leisure on Sundays and holy days, and required faithful attendance at worship services.

Church officials, in turn, provided various forms of material aid and accommodation to the state. Church meetinghouses and chapels were used not only to conduct religious services, but also to host town assemblies, political rallies, and public auctions, to hold educational and vocational classes, to house the community library, to maintain census rolls and birth, marriage, and death certificates. Church officials ... preached obedience to the authorities and imposed spiritual discipline on parishioners found guilty of crime. They encouraged their parishioners to be active in political affairs and each year offered “election day sermons” on Christian political principles. They offered learned expositions on the requirements of Godly law, and occasionally offered advice to legislatures and courts.

Puritan leaders of colonial New England left little room for individual religious experimentation. Despite their adherence to a basic separation of the institutions of church and state, the New England authorities insisted on general adherence to the creeds and canons of Puritan Calvinism. Already in the 1630s, dissidents from this faith . . . were summarily dismissed from the colony. Although in the eighteenth century, religious dissidents of many kinds came to be tolerated in the New England colonies, they enjoyed only limited political rights and social opportunities and were subject to a variety of special governmental restrictions, taxes, and other encumbrances.

2. Evangelical Views

Though the evangelical tradition of religious liberty is sometimes traced to the seventeenth century—particularly to Roger Williams, the founder of colonial Rhode Island and William Penn, the founder of Pennsylvania—it did not emerge as a strong political force until after the Great Awakening of circa 1720-1780. Numerous spokesmen for the evangelical cause rose up in the course of the later eighteenth century all along the Atlantic seaboard—Isaac Backus, John Leland, John Wesley, and a host of other pastors and pamphleteers. Though the evangelicals had enjoyed fewer opportunities than the Puritans to institutionalize their views, they nonetheless had a formidable influence on the early American constitutional experiment.

Like the Puritans, the evangelicals advanced a theological theory of religious rights and liberties. They likewise advocated the institutional separation of church and state—the construction of a “wall of Separation between the Garden of the Church and the Wilderness of the world,” to quote Roger Williams. The evangelicals went beyond the Puritans, however, both in their definition of individual and institutional religious rights and in their agitation for a fuller separation of the institutions of church and state. The evangelicals sought to protect the liberty of conscience of every individual and the freedom of association of every religious group. Their solution was thus to prohibit all legal establishments of religion, and, indeed, all admixtures of religion and politics. As John Leland, the fiery Baptist preacher, put it in a proposed amendment to the Massachusetts Constitution:

To prevent the evils that have heretofore been occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics, no religious test shall ever be requested as a qualification of any officer, in any department of this government; neither shall the legislature, under this constitution, ever establish any religion by law, give any one sect a preference to another, or force any man in the commonwealth to part with his property for the support of religious worship, or the maintenance of ministers of the gospel.

Later, Leland put the matter even more bluntly: “The notion of a Christian commonwealth should be exploded forever.”

Religious voluntarism lay at the heart of the evangelical view. Every individual, they argued, must be given the liberty of conscience to choose or to change his or her faith. “[N]othing can be true religion but a voluntary obedience unto [God’s] revealed will,” declared the Baptist Isaac Backus. State coercion or control of this choice -- either directly through persecution and forced collection of tithes and services, or indirectly through withholding civil rights and benefits from religious minorities -- was an offense both to the individual and to God. A plurality of religions should coexist in the community, and it was for God, not the state, to decide which of these religions should flourish and which should fade. “Religious liberty is a divine right,” wrote the evangelical preacher Israel Evans.

Every religious body was likewise to be free from state control of their assembly and worship, state regulations of their property and polity, state incorporation of their society and clergy, state interference in their discipline and government. Every religious body was also to be free from state emoluments like tax exemptions, civil immunities, property donations, and other forms of state support for the church, that were readily countenanced by Puritan and other leaders. The evangelicals feared state benevolence towards religion and religious bodies almost as much as they feared state repression. For those religious bodies that received state benefits would invariably become beholden to the state, and distracted from their divine mandates. “[I]f civil Rulers go so far out of their Sphere as to take the Care and Management of religious affairs upon them,” reads a 1776 Baptist Declaration, “Yea . . . Farewel to ‘the free exercise of Religion’.”

The chief concern of the evangelicals was theological, not political. Having suffered for more than a century as a religious minority in colonial America, and even longer in Europe, they sought a constitutional means to free all religion from the fetters of the law, to relieve the church from the restrictions of the state. In so doing, they developed only the rudiments of a political theory. They were content with a state that created a climate conducive to the cultivation of a plurality of religions and accommodated all religious believers and religious bodies without conditions or controls.

3. Enlightenment Views

Exponents of the enlightenment tradition in America provided a political theory that complemented the religious rights theology of the evangelicals. Though American exponents of the enlightenment claimed early European visionaries such as John Locke and David Hume, they did not emerge as a significant political voice until the mid-eighteenth century. The American Revolution served to transform the American enlightenment tradition from scattered groups of elite philosophers into a sizeable company of intellectual and political lights. Members of this company, though widely divergent in theological perspective and social position, were united in their efforts to convert enlightenment ideals into constitutional imperatives and in their adherence to the political views of such spokesmen as Thomas Jefferson, Benjamin Franklin, and others.

The primary purpose of enlightenment writers was political, not theological. They sought not only to free religion and the church from the interference of politics and the state, as did the evangelicals, but, more importantly, to free politics and the state from the intrusion of religion and the church. Exponents of the enlightenment movement taught that the state should give no special aid, support, privilege, or protection to organized religion in the form of tax exemptions, special criminal protections, administrative subsidies, or the incorporation of religious bodies. Nor should the state predicate its laws or policies on explicitly religious grounds or religious arguments, or draw on the services of religious officials or bodies to discharge state functions. As Madison put it in 1822: “[A] perfect separation between ecclesiastical and civil matters” is the best course, for “religion & Gov. will both exist in greater purity, the less they are mixed together.” In an 1832 letter to Rev. Jasper Adams, he wrote:

[I]t may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Gov. from interference in any way whatever, beyond the necessity of preserving public order, & protecting each sect ag. trespasses on its legal rights by others.

Such views were based on a profound skepticism about organized religion and a profound fear of an autocratic state. To allow church and state to be unrestricted, it was thought, would be to invite arbitrariness and abuse. To allow them to combine would be to their mutual disadvantage -- to produce, in Thomas Paine’s words, “a sort of mule-animal, capable only of destroying, and not of breeding up.” Such views were also based on the belief that a person is fundamentally an individual being and that religion is primarily a matter of private reason and conscience and only secondarily a matter of communal association and corporate confession. Every person, James Madison wrote, has the right to form a rational opinion about the duty he owes the Creator and the manner in which that duty is to be discharged.

Post-revolutionary Virginia proved to be fertile ground for political exponents of the enlightenment tradition to cultivate these views. Article 16 of the 1776 Virginia Bill of Rights, influenced in part by James Madison, provided:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity, towards each other.

The famous Virginia Statute on Religious Freedom, drafted by Thomas Jefferson in 1777 and ultimately passed in 1786, provided even stronger enlightenment language. The statute begins by celebrating that “Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion.” It then guarantees: “That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”

These lofty protections of individual religious rights went hand-in-hand with the close restrictions on corporate religious rights that were also advocated by enlightenment exponents. For example, before the turn of the nineteenth century, the Virginia legislature outlawed religious corporations (a prohibition still in place in Virginia and West Virginia).

4. Civic Republican Views

The “civic republicans,” as they have come to be called in recent histories, were an eclectic group of politicians, preachers, and pamphleteers who strove to cultivate a set of common values and beliefs for the new nation. Their principal spokesmen were John Adams, Samuel Adams, Oliver Ellsworth, George Washington, James Wilson, and other leaders—though the movement attracted considerable support among the spiritual and intellectual laity of the young republic as well. Just as the enlightenment leaders found their theological allies among the evangelicals, so the republican leaders found their theological allies among the Puritans.

To be sure, the civic republicans shared much common ground with evangelical and enlightenment exponents. They, too, advocated liberty of conscience for all and state support for a plurality of religions in the community. They, too, opposed religious intrusions on politics that rose to the level of political theocracy and political intrusions on religion that rose to the level of religious establishment. But, contrary to evangelical and enlightenment views and consistent with Puritan views, civic republicans sought to imbue the public square with a common religious ethic and ethos—albeit one less denominationally specific and rigorous than that countenanced by the Puritans.

“Religion and Morality are the essential pillars of Civil society,” George Washington declared. “[W]e have no government,” John Adams echoed, “armed with power capable of contending with human passions unbridled by morality and religion.” “Religion and liberty are the meat and the drink of the body politic,” wrote Yale President Timothy Dwight. According to the civic republicans, society needs a fund of religious values and beliefs, a body of civic ideas and ideals that are enforceable both through the common law and through communal suasion. This was what Benjamin Franklin had called the “Publick Religion” (and what is now called the “civil religion”) of America, which undergirded the plurality of sectarian religions. This “Publick Religion” taught a creed of honesty, diligence, devotion, public spiritedness, patriotism, obedience, love of God, neighbor, and self, and other ethical commonplaces taught by various religious traditions at the time of the founding. Its icons were the Bible, the Declaration of Independence, the bells of liberty, and the Constitution. Its clergy were public-spirited Christian ministers and religiously devout politicians. Its liturgy was the proclamations of prayers, songs, sermons, and Thanksgiving Day offerings by statesmen and churchmen. Its policy was government appointment of legislative and military chaplains, government sponsorship of general religious education and organization, and government enforcement of a religiously based morality through positive law.

Civic republicans countenanced state support and accommodation for religious institutions, for they were regarded as allies and agents of good government. “[R]eligion and its institutions are the best aid of government,” declared Nathan Strong, “by strengthening the ruler’s hand, and making the subject faithful in his place, and obedient to the general laws.” Civic republicans, therefore, endorsed tax exemptions for church properties and tax support for religious schools, charities, and missionaries; donations of public lands to religious organizations; and criminal protections against blasphemy, sacrilege, and interruption of religious services. In theory, such state emoluments were to be given indiscriminately to all religious groups. In reality, certain Protestant groups received the preponderance of such support, while Quakers, Catholics, and the few Jewish groups about were routinely excluded.

Post-revolutionary Massachusetts proved to be fertile ground for the cultivation of these civic republican views. The 1780 Constitution of Massachusetts, for example, proclaimed that “[i]t is the right as well as the duty of all men in society, publicly and at stated seasons, to worship the SUPREME BEING, the great Creator and preserver of the universe.” For “the public worship of God and instructions in piety, religion, and morality, promote the happiness and prosperity of a people, and the security of a republican government.”

These civic republican views also found favor in the Continental Congress, which authorized the appointment of tax-supported chaplains to the military, tax appropriations for religious schools and missionaries, diplomatic ties to the Vatican, and recitations of prayer at its opening sessions and during the day of Thanksgiving. The Continental Congress also passed the Northwest Ordinance in 1787, which provided, in part: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

These four views—Puritan, evangelical, enlightenment, and republican—helped to inform the early American experiment in religious rights and liberties. Each view was liberally espoused by federal and state leaders in the early American republic, informally in their letters and pamphlets, and formally in the Constitutional Convention and ratification debates. Each left indelible marks in the documents and developments of early American constitutionalism.

B. The Essential Rights and Liberties of Religion

Despite the tensions among them, exponents of these four groups generally agreed upon what New England Puritan jurist and theologian Elisha Williams called “the essential rights and liberties of [religion].” To be sure, these “essential rights and liberties” never won uniform articulation or universal assent in the young republic. But a number of enduring and interlocking principles found widespread support; many of which were included in state and federal constitutional discussions. These principles included liberty of conscience, free exercise of religion, pluralism, equality, separationism, and disestablishment of religion. Such principles remain at the heart of the American experiment today.

The common goal of these principles was to replace the inherited tradition of religious establishment with a new experiment that rendered religious rights and liberties the “first freedom” of the constitutional order. To be sure, a number of writers were reluctant to extend religious liberty to Catholics and Jews, let alone to Muslims and Indians—and these prejudices are sometimes betrayed in the earliest drafts of the state constitutions. For many eighteenth century writers, the term “religion” was synonymous with Christianity (or even Protestantism), and the discussion of “religious liberty” was often in terms of the “liberty or rights of Christians.” And, to be sure, some Puritans and civic republicans continued to support what John Adams called a “slender” form of congregationalist establishment in some of the New England states—consisting principally of tax collections and preferences for the congregational churches and schools. But such “compromises” do not deprive the early American experiment, and the sentiments that inspired it, of their validity or ongoing utility. By eighteenth century European standards, this experiment was remarkably advanced, and calculated to benefit the vast majority of the population.

Virtually all eighteenth century writers embraced religious liberty as the “first liberty” and the “first freedom.” It is “the most inalienable and sacred of all human rights,” wrote Thomas Jefferson. “Christian liberty, both civil and ecclesiastical, is the greatest blessing of the kind, that we can enjoy,” wrote the congregationalist preacher Jonathan Parsons, “and therefore to be deprived of either, is the greatest injury that we can suffer.” At the same time, virtually all writers denounced the bloody religious establishments of previous eras. James Madison reflected commonplaces of the day when he wrote:

[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry, and persecution. . . . Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion.

1. Liberty of Conscience

Liberty of conscience was the general solvent used in the early American experiment in religious liberty. It was universally embraced in the young republic—even by the most churlish of establishmentarians. The phrase “liberty of conscience” was often conflated with the phrase “free exercise of religion,” “religious freedom,” “religious liberty,” “religious privileges,” or “religious rights.” James Madison, for example, simply rolled into one linguistic heap “religious freedom” or “the free exercise of religion according to the dictates of conscience.” In another passage, he spoke of “religious liberty” as the “religious rights . . . of a multiplicity of sects.” Such patterns of interwoven language appear regularly in later eighteenth century writings; one term often implicated and connoted several others. To read the guarantee of liberty of conscience too dogmatically is to ignore the fluidity of the term in the eighteenth century.

Nonetheless, many eighteenth century writers ascribed distinctive content to the phrase. First, liberty of conscience protected voluntarism -- “the right of private judgment in matters of religion,” the unencumbered ability to choose and to change one’s religious beliefs and adherences. The Puritan jurist Elisha Williams put this matter very strongly for Christians in 1744 (directly contradicting the rigid opinions of his great grandfather John Cotton, a century before):

Every man has an equal right to follow the dictates of his own conscience in the affairs of religion. Every one is under an indispensable obligation to search the Scriptures for himself . . . and to make the best use of it he can for his own information in the will of God, the nature and duties of Christianity.

James Madison wrote more generically in 1785: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” The evangelical leader John Leland echoed these sentiments in 1791. Puritan, enlightenment philosophe, and evangelical alike could agree on this core meaning of liberty of conscience.

Second, and closely related, liberty of conscience prohibited religiously based discrimination against individuals. Persons could not be penalized for the religious choices they made, nor swayed to make certain choices because of the civil advantages attached to them. Liberty of conscience, Ezra Stiles opined, permits “no bloody tribunals, no cardinals inquisitors-general, to bend the human mind, forceably to control the understanding, and put out the light of reason, the candle of the Lord in man.” Liberty of conscience also prohibits more subtle forms of discrimination, prejudice, and cajolery by state, church, or even other citizens. “[N]o part of the community shall be permitted to perplex or harass the other for any supposed heresy,” wrote a Massachusetts pamphleteer, “. . . each individual shall be allowed to have and enjoy, profess and maintain his own system of religion.”

Third, in the view of some eighteenth century writers, liberty of conscience guaranteed “a freedom and exemption from human impositions, and legal restraints, in matters of religion and conscience.” Persons of faith were to be “exempt[ ] from all those penal, sanguinary laws, that generate vice instead of virtue.” Such laws not only included the onerous criminal rules that traditionally encumbered and discriminated against religious nonconformists, and led to fines, whippings, banishments, and occasional executions of dissenting colonists. They also included more facially benign laws that worked injustice to certain religious believers -- conscription laws that required religious pacificists to participate in the military, oath-swearing laws that ran afoul of the religious scruples of certain believers, tithing and taxing laws that forced believers to support churches, schools, and other causes that they found religiously odious. Liberty of conscience required that persons be exempt or immune from civil duties and restrictions that they could not, in good conscience, accept or obey.

It was commonly assumed in the eighteenth century that the laws of conscientious magistrates would not tread on the religious scruples of their subjects. As George Washington put it in a letter to a group of Quakers:

[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.

Where general laws and policies did intrude on the religious scruples of an individual or group, liberty of conscience demanded protection of religious minorities and exemption. Whether such exemptions should be accorded by the legislature or by the judiciary, and whether they were per se a constitutional right or simply a rule of equity -- the principal bones of contention among recent commentators -- the eighteenth century sources at my disposal simply do not clearly say.

All the early state constitutions include a guarantee of liberty of conscience for all. The Delaware Constitution provides typical language:

That all men have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences and understandings; and that no man ought or of right can be compelled to attend any religious worship or maintain any religious ministry contrary to or against his own free will and consent, and that no authority can or ought to be vested in, or assumed by any power whatever that shall in any case interfere with, or in any manner controul [sic] the right of conscience and free exercise of religious worship.

The Pennsylvania Constitution adds a protection against religious discrimination: “Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship.” It also provides an exemption for conscientious objectors: “Nor can any man who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if he will pay such equivalent.” The Constitution of New York addressed both state and church intrusions on conscience, and endeavored

not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind [and thus] declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind.

The Constitution of New Jersey provided exemptions from religious taxes, using typical language: “nor shall any person . . . ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church . . . or ministry, contrary to what he believes to be right.”

The principle of liberty of conscience also informed some of the federal constitutional debates on religion. Article VI of the Constitution explicitly provides: “[N]o religious Test [oath] shall ever be required as a Qualification” for public office, thereby, inter alia, protecting the religiously scrupulous against oath-swearing. Early versions of the First Amendment religion clauses included such phrases as: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead”; “The civil rights of none shall be abridged on account of religious belief or worship . . . nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed”; “Congress shall make no law . . . to infringe the rights of conscience.” Such phrases were ultimately abandoned (though not argued against in the extant records) for the more pregnant language: “Congress shall make no law . . . prohibiting the free exercise [of religion].” This language does not leave conscience unprotected, but more protected. Since Congress cannot “prohibit” the free exercise, the public manifestation, of religion, a fortiori Congress cannot “prohibit” a person’s private liberty of conscience, and the precepts embraced therein.

Liberty of conscience was the cardinal principle for the new experiment in religious liberty. Several other “essential rights and liberties of religion” built directly on this core principle.

2. Free Exercise

Liberty of conscience was inextricably linked to free exercise of religion. Liberty of conscience was a guarantee to be left alone to choose, to entertain, and to change one’s religious beliefs. Free exercise of religion was the right to act publicly on the choices of conscience once made, without intruding on or obstructing the rights of others or the general peace of the community. Already in 1670, the Quaker leader William Penn had linked these two guarantees, insisting that religious liberty entails “not only a mere liberty of the mind, in believing or disbelieving . . . but [also] the exercise of ourselves in a visible way of worship.” By the next century, this organic linkage was commonly accepted. Religion, Madison wrote, “must be left to the convictions and conscience of every man; and it is the right of every man to exercise it as these may dictate.” For most eighteenth century writers, religious belief and religious action went hand-in-hand, and each deserved legal protection.

Though eighteenth century writers, or dictionaries, offered no universal definition of “free exercise,” the phrase generally connoted various forms of free public religious action—religious speech, religious worship, religious assembly, religious publication, religious education, among others. Free exercise of religion also embraced the right of the individual to join with like-minded believers in religious societies, which religious societies were free to devise their own modes of worship, articles of faith, standards of discipline, and patterns of ritual. Eighteenth century writers did not speak unequivocally of what we now call group rights, or corporate free exercise rights, but they did regularly call for “ecclesiastical liberty,” “the equal liberty of one sect . . . with another,” and the right “to have the full enjoyment and free exercise of those spiritual powers . . . which, being derived only from CHRIST and His Apostles, are to be maintained, independent of every foreign, or other, jurisdiction, so far as may be consistent with the civil rights of society.”

Virtually all of the early state constitutions guaranteed “free exercise” rights—adding the familiar caveat that such exercise not violate the public peace or the private rights of others. Most states limited their guarantee to “the free exercise of religious worship” or the “free exercise of religious profession”—thereby leaving the protection of other noncultic forms of religious expression and action to other constitutional guarantees. A few states provided more generic free exercise guarantees. Virginia, for example, guaranteed “the free exercise of religion, according to the dictates of conscience”—expanding constitutional protection to cultic and noncultic religious expression and action, provided it was mandated by conscience. The Georgia constitution provided even more flatly: “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.” The First Amendment drafters chose equally embracive language of “the free exercise” of religion. Rather than using the categorical language preferred by state drafters, however, the First Amendment drafters guaranteed protection only against Congressional laws “prohibiting” the free exercise of religion. Whether Congress could make laws “infringing” or “abridging” the free exercise of religion—as earlier drafts sought to outlaw—was left open to subsequent interpretation.

3. Pluralism

Eighteenth century writers regarded “multiplicity,” “diversity,” or “plurality,” as an equally essential dimension of religious rights and liberties. Two kinds of pluralism were distinguished.

Evangelical and enlightenment writers urged the protection of confessional pluralism—the maintenance and accommodation of a plurality of forms of religious expression and organization in the community. Evangelical writers advanced a theological argument for this principle, emphasizing that it was for God, not the state, to decide which forms of religion should flourish and which should fade. “God always claimed it as his sole prerogative to determine by his own laws what his worship shall be, who shall minister in it, and how they shall be supported,” Isaac Backus wrote. Enlightenment writers advanced a rational argument. “Difference of opinion is advantageous in religion,” Thomas Jefferson wrote:

The several sects perform the office of a Censor morum over each other. Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. . . . Reason and persuasion are the only practicable instruments.

Madison wrote similarly that “the utmost freedom . . . arises from that multiplicity of sects which pervades America, . . . for where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest.” Other writers added that the maintenance of multiple faiths is the best protection of the core guarantee of liberty of conscience.

Puritan and civic republican writers insisted as well on the protection of social pluralism—the maintenance and accommodation of a plurality of associations to foster religion. Churches and synagogues were not the only “religious societies” that deserved constitutional protection. Families, schools, charities, and other learned and civic societies were equally vital bastions of religion and equally deserving of the special protections of religious rights and liberties. These diverse social institutions had several redeeming qualities. They provided multiple forums for religious expressions and actions, important bulwarks against state encroachment on natural liberties, particularly religious liberties, and vital sources of theology, morality, charity, and discipline in the state and broader community.

Pluralism was thus not just a sociological fact for several eighteenth century writers; it was a constitutional condition for the guarantee of true religious rights and liberties. This was a species and application of Madison’s argument about pluralism in Federalist Paper No. 10—that the best protection against political tyranny is the guarantee of a multiplicity of interests, each contending for public endorsem*nt and political expression in a federalist republic.

4. Equality

The efficacy of liberty of conscience, free exercise of religion, and confessional pluralism depended on a guarantee of equality of all peaceable religions before the law. For the state to single out one pious person or one form of faith for either preferential benefits or discriminatory burdens would skew the choice of conscience, encumber the exercise of religion, and upset the natural plurality of faiths. Many eighteenth century writers therefore inveighed against the state’s unequal treatment of religion. Madison captured the prevailing sentiment: “A just Government . . . will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.”

This principle of equality of all peaceable religious persons and bodies before the law found its way into a number of early state constitutions. The Constitution of New Jersey insisted that “there shall be no establishment of any one religious sect in . . . preference to another.” Delaware guaranteed Christians “equal rights and privileges” -- a guarantee soon extended to all religions. Maryland insisted that Christians “are equally entitled to protection in their religious liberty.” Virginia guaranteed that “all men are equally entitled to the free exercise of religion.” New York guaranteed all persons “free exercise and enjoyment of religious profession and worship, without discrimination or preference.” Even Massachusetts, which maintained a “slender” establishment, nonetheless guaranteed that “all religious sects and denominations, demeaning themselves peaceably, and as good citizens of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.”

The principle of equality also found its place in early drafts of the First Amendment religion clauses, yielding such phrases as: “nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed”; “Congress shall make no law establishing one religious sect or society in preference to others. . . .”; and “Congress shall make no law establishing any particular denomination of religion in preference to another. . . .” Madison, in fact, regarded protection of the “equal rights of conscience” as the “most valuable” guarantee for religious liberty, and he argued that it should be universally guaranteed at both the federal and state levels. These provisions and arguments were abandoned for the more generic guarantees of disestablishment and free exercise at the federal level—guarantees which presumably are to apply equally to all religions.

5. Separationism

The principle of separationism was designed primarily to protect religious bodies and religious believers in their inherent rights.

On the one hand, separationism guaranteed the independence and integrity of the internal processes of religious bodies. Elisha Williams spoke for many churchmen when he wrote: “ [E]very church has [the] Right to judge in what manner God is to be worshipped by them, and what Form of Discipline ought to be observed by them, and the Right also of electing their own Officers.” In the mind of most eighteenth century writers, the principle of separation of church and state mandated neither the separation of religion and politics nor the secularization of civil society. No eighteenth century writer would countenance the preclusion of religion altogether from the public square or the political process. The principle of separationism was directed to the institutions of church and state, not to religion and culture.

On the other hand, the principle of separationism also protected the liberty of conscience of the religious believer. President Thomas Jefferson, for example, in his famous 1802 Letter to the Danbury Baptist Association, tied the principle of separationism directly to the principle of liberty of conscience:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Separationism thus assured individuals of their natural, inalienable right of conscience, which could be exercised freely and fully to the point of breaching the peace or shirking social duties. Jefferson is not talking here of separating politics and religion. Indeed, in the very next paragraph of his letter, President Jefferson performed an avowedly religious act of offering prayers on behalf of his Baptist correspondents: “I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man. . . .”

The principles of pluralism, equality, and separationism—separately and together—served to protect religious bodies, both from each other and from the state. It was an open question, however, whether such principles precluded governmental financial and other forms of support of religion altogether. Evangelical and enlightenment writers sometimes viewed such principles as a firm bar on state support, particularly financial support, of religious beliefs, believers, and bodies.

Puritan and republican writers often viewed such principles only as a prohibition against direct financial support for the religious worship or exercise of one particular religious group. General governmental support for religion—in the form of tax exemptions to religious properties, land grants and tax subsidies to religious schools and charities, tax appropriations for missionaries and military chaplains, and similar general causes—were considered not only licit, but necessary for good governance.

6. Disestablishment

For some eighteenth century writers, particularly the New England Puritans who defended their “slender establishments,” the roll of “essential rights and liberties” ended here. For other writers, however, the best protection of all these principles was through the explicit disestablishment of religion. The term “establishment of religion” was a decidedly ambiguous phrase—in the eighteenth century, as much as today. The phrase was variously used to describe compromises of the principles of separationism, pluralism, equality, free exercise, and/or liberty of conscience. The guarantee of “disestablishment of religion” could signify protection against any such compromise.

According to some eighteenth century writers, the guarantee of disestablishment protected separationism. In Jefferson’s words, it prohibited government

from intermeddling with religious institutions, their doctrines, discipline, or exercises. . . . [and from] the power of effecting any uniformity of time or matter among them. Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own peculiar tenets. . . .

This view of disestablishment of religion was posed in the penultimate draft of the establishment clause: “Congress shall make no law establishing articles of faith or a mode of worship . . . .”—a provision rejected for a mere generic guarantee.

For other eighteenth century writers, the guarantee of disestablishment protected the principles of equality and pluralism by preventing government from singling out certain religious beliefs and bodies for preferential treatment. This concept of disestablishment came through repeatedly in both state and federal constitutional debates.

For still others, disestablishment of religion meant foreclosing government from coercively prescribing mandatory forms of religious belief, doctrine, and practice -- in violation of the core guarantee of liberty of conscience. Such coercion of religion inflates the competence of government.

Such coercion of religion also compromises the pacific ideals of most religions. Thomas Paine, who is usually branded as a religious skeptic, put this well:

All religions are in their nature mild and benign, and united with principles of morality. They could not have made proselytes at first, by professing anything that was vicious, cruel, persecuting, or immoral. . . . Persecution is not an original feature in any religion; but it is always the strongly marked feature of all law-religions, or religions established by law. Take away the law-establishment, and every religion reassumes its original benignity.

Such coercion of religion also compromises the individual’s liberty of conscience. As the Pennsylvania Constitution put it: “[N]o authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul [sic], the right of conscience in the free exercise of religious worship.”

The vague language of the First Amendment—“Congress shall make no law respecting an establishment”—could readily accommodate these separationist, equality, or noncoercion readings of “disestablishment.” Congress may not “establish religion” outright. Nor may Congress make laws that “respect” an establishment of religion—that is anticipate, “look towards,” or “regard with deference,” such an establishment, to use common eighteenth century definitions of “respecting.” The best way to assess whether a Congressional law violates this prohibition is to see whether it compromises any one of the cardinal principles of separationism, equality, and noncoercion protected by the disestablishment guarantee.

7. Interdependence and Incorporation of Principles

For all the diversity of opinion one finds in the Constitutional Convention debates, pamphlets, sermons, editorials, and broadsides of the eighteenth century, most influential writers embraced this roll of “essential rights and liberties of religion”—liberty of conscience, free exercise of religion, pluralism, equality, separationism, and disestablishment of religion. To be sure, many of these terms carried multiple meanings in the later eighteenth century. And to be sure, numerous other terms and norms were under discussion. But in the range of official and unofficial sources at my disposal, these principles were the most commonly discussed and embraced.

On the one hand, eighteenth century writers designed these principles to provide an interwoven shield against repressive religious establishments. Liberty of conscience protected the individual from coercion and discriminatory treatment by church or state officials and guaranteed unencumbered, voluntary choices of faith. Free exercise of religion protected the individual’s ability to discharge the duties of conscience through religious worship, speech, publication, assembly, and other actions without necessary reference to a prescribed creed, cult, or code of conduct. Pluralism protected multiple forms and forums of religious belief and action, in place of a uniformly mandated religious doctrine, liturgy, and polity. Equality protected religious individuals and bodies from special benefits and from special burdens administered by the state, or by other religious bodies. Separationism protected individual believers, as well as religious and political officials, from undue interference or intrusion on each other’s processes and practices. Disestablishment precluded governmental prescriptions of the doctrine, liturgy, or morality of one faith, or compromises of the principles of liberty of conscience, free exercise, equality, pluralism, or separationism.

On the other hand, eighteenth century writers designed these principles to be mutually supportive and mutually subservient to the highest goal of guaranteeing “the essential rights and liberties of religion” for all. No single principle could by itself guarantee such religious liberty. Eighteenth century writers, therefore, arranged these multiple principles into an interlocking and interdependent shield of religious liberties and rights for all. Religion was simply too vital and too valuable a source of individual flourishing and social cohesion to be left unguarded on any side.

It is in the context of this plurality of opinions and panoply of principles that the First Amendment religion clauses should, in my view, be understood. The religion clauses were a vital, but only a small, part of this initial constitutional protection of essential rights and liberties of religion. They bound only the national government, and (on their face) set only the outer boundaries to its conduct vis-’a-vis religion—forbidding either prescriptions or proscriptions of religion. The religion clauses, together, were designed to legitimate, and to live off, the state constitutional guarantees of religious rights and liberties. The guarantees of disestablishment and free exercise depended for their efficacy both on each other and on other religious rights and liberties that eighteenth century writers regarded as “essential.” The guarantees of disestablishment and free exercise standing alone—as they came to be during the 1940s when the Supreme Court “incorporated” these two guarantees into the due process clause of the Fourteenth Amendment—could legitimately be read to have multiple principles incorporated within them.

Indeed, it might not be too strong to say that the “first incorporation” of religious rights and liberties was engineered not by the Supreme Court in the 1940s when it incorporated the religion clauses into the due process clause, but by the First Congress in 1789 when it drafted the First Amendment religion clauses. This “first incorporation”—if it can be so called—had two dimensions. First, the pregnant language that “Congress shall make no law respecting an establishment of religion” can be read as a confirmation and incorporation of prevailing state constitutional precepts and practices. Such state practices included “the slender establishments” of religion in the New England states, which nonetheless included ample guarantees of liberty of conscience, free exercise, equality, plurality, and institutional separation of church and state. Such practices also included the “establishments of religious freedom” (in Jefferson’s phrase of 1779) that prevailed in Virginia and other southern and middle states. The First Amendment drafters seem to have contemplated and confirmed a plurality of constitutional constructions “respecting” religion and its establishment. Second, the embracive terms “free exercise” and “establishment” can be read to incorporate the full range of “essential rights and liberties” discussed in the eighteenth century. Eighteenth century writers often used the term “free exercise” synonymously with liberty of conscience, equality, separationism, and pluralism. They similarly regarded “non” or “disestablishment” as a generic guarantee of separationism, pluralism, equality, free exercise, and liberty of conscience. Read in context, therefore, the cryptic religion clauses of the First Amendment can be seen to embody—to incorporate—multiple expressions of the “essential rights and liberties of religion.”

A Letter Concerning Toleration

John Locke (1689)

Translated by William Popple

Honoured Sir,

Since you are pleased to inquire what are my thoughts about the mutual toleration of Christians in their different professions of religion, I must needs answer you freely that I esteem that toleration to be the chief characteristic mark of the true Church. . . .

The toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ, and to the genuine reason of mankind, that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light. I will not here tax the pride and ambition of some, the passion and uncharitable zeal of others. These are faults from which human affairs can perhaps scarce ever be perfectly freed; but yet such as nobody will bear the plain imputation of, without covering them with some specious colour; and so pretend to commendation, whilst they are carried away by their own irregular passions. But, however, that some may not colour their spirit of persecution and unchristian cruelty with a pretence of care of the public weal and observation of the laws; and that others, under pretence of religion, may not seek impunity for their libertinism and licentiousness; in a word, that none may impose either upon himself or others, by the pretences of loyalty and obedience to the prince, or of tenderness and sincerity in the worship of God; I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising between those that have, or at least pretend to have, on the one side, a concernment for the interest of men's souls, and, on the other side, a care of the commonwealth. The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests. Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.

It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure unto all the people in general and to every one of his subjects in particular the just possession of these things belonging to this life. If anyone presume to violate the laws of public justice and equity, established for the preservation of those things, his presumption is to be checked by the fear of punishment, consisting of the deprivation or diminution of those civil interests, or goods, which otherwise he might and ought to enjoy. But seeing no man does willingly suffer himself to be punished by the deprivation of any part of his goods, and much less of his liberty or life, therefore, is the magistrate armed with the force and strength of all his subjects, in order to the punishment of those that violate any other man's rights.

Now that the whole jurisdiction of the magistrate reaches only to these civil concernments, and that all civil power, right and dominion, is bounded and confined to the only care of promoting these things; and that it neither can nor ought in any manner to be extended to the salvation of souls, these following considerations seem unto me abundantly to demonstrate.

First, because the care of souls is not committed to the civil magistrate, any more than to other men. It is not committed unto him, I say, by God; because it appears not that God has ever given any such authority to one man over another as to compel anyone to his religion. Nor can any such power be vested in the magistrate by the consent of the people, because no man can so far abandon the care of his own salvation as blindly to leave to the choice of any other, whether prince or subject, to prescribe to him what faith or worship he shall embrace. For no man can, if he would, conform his faith to the dictates of another. All the life and power of true religion consist in the inward and full persuasion of the mind; and faith is not faith without believing. Whatever profession we make, to whatever outward worship we conform, if we are not fully satisfied in our own mind that the one is true and the other well pleasing unto God, such profession and such practice, far from being any furtherance, are indeed great obstacles to our salvation. For in this manner, instead of expiating other sins by the exercise of religion, I say, in offering thus unto God Almighty such a worship as we esteem to be displeasing unto Him, we add unto the number of our other sins those also of hypocrisy and contempt of His Divine Majesty.

In the second place, the care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force. Confiscation of estate, imprisonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgement that they have framed of things.

It may indeed be alleged that the magistrate may make use of arguments, and, thereby; draw the heterodox into the way of truth, and procure their salvation. I grant it; but this is common to him with other men. In teaching, instructing, and redressing the erroneous by reason, he may certainly do what becomes any good man to do. Magistracy does not oblige him to put off either humanity or Christianity; but it is one thing to persuade, another to command; one thing to press with arguments, another with penalties. This civil power alone has a right to do; to the other, goodwill is authority enough. Every man has commission to admonish, exhort, convince another of error, and, by reasoning, to draw him into truth; but to give laws, receive obedience, and compel with the sword, belongs to none but the magistrate. And, upon this ground, I affirm that the magistrate's power extends not to the establishing of any articles of faith, or forms of worship, by the force of his laws. For laws are of no force at all without penalties, and penalties in this case are absolutely impertinent, because they are not proper to convince the mind. Neither the profession of any articles of faith, nor the conformity to any outward form of worship (as has been already said), can be available to the salvation of souls, unless the truth of the one and the acceptableness of the other unto God be thoroughly believed by those that so profess and practise. But penalties are no way capable to produce such belief. It is only light and evidence that can work a change in men's opinions; which light can in no manner proceed from corporal sufferings, or any other outward penalties.

In the third place, the care of the salvation of men's souls cannot belong to the magistrate; because, though the rigour of laws and the force of penalties were capable to convince and change men's minds, yet would not that help at all to the salvation of their souls. For there being but one truth, one way to heaven, what hope is there that more men would be led into it if they had no rule but the religion of the court and were put under the necessity to quit the light of their own reason, and oppose the dictates of their own consciences, and blindly to resign themselves up to the will of their governors and to the religion which either ignorance, ambition, or superstition had chanced to establish in the countries where they were born? In the variety and contradiction of opinions in religion, wherein the princes of the world are as much divided as in their secular interests, the narrow way would be much straitened; one country alone would be in the right, and all the rest of the world put under an obligation of following their princes in the ways that lead to destruction; and that which heightens the absurdity, and very ill suits the notion of a Deity, men would owe their eternal happiness or misery to the places of their nativity.

These considerations, to omit many others that might have been urged to the same purpose, seem unto me sufficient to conclude that all the power of civil government relates only to men's civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come.

Let us now consider what a church is. A church, then, I take to be a voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God in such manner as they judge acceptable to Him, and effectual to the salvation of their souls.

I say it is a free and voluntary society. Nobody is born a member of any church; otherwise the religion of parents would descend unto children by the same right of inheritance as their temporal estates, and everyone would hold his faith by the same tenure he does his lands, than which nothing can be imagined more absurd. Thus, therefore, that matter stands. No man by nature is bound unto any particular church or sect, but everyone joins himself voluntarily to that society in which he believes he has found that profession and worship which is truly acceptable to God. The hope of salvation, as it was the only cause of his entrance into that communion, so it can be the only reason of his stay there. For if afterwards he discover anything either erroneous in the doctrine or incongruous in the worship of that society to which he has joined himself, why should it not be as free for him to go out as it was to enter? No member of a religious society can be tied with any other bonds but what proceed from the certain expectation of eternal life. A church, then, is a society of members voluntarily uniting to that end.

It follows now that we consider what is the power of this church and unto what laws it is subject. Forasmuch as no society, how free soever, or upon whatsoever slight occasion instituted, whether of philosophers for learning, of merchants for commerce, or of men of leisure for mutual conversation and discourse, no church or company, I say, can in the least subsist and hold together, but will presently dissolve and break in pieces, unless it be regulated by some laws, and the members all consent to observe some order. Place and time of meeting must be agreed on; rules for admitting and excluding members must be established; distinction of officers, and putting things into a regular course, and suchlike, cannot be omitted. But since the joining together of several members into this church-society, as has already been demonstrated, is absolutely free and spontaneous, it necessarily follows that the right of making its laws can belong to none but the society itself; or, at least (which is the same thing), to those whom the society by common consent has authorised thereunto. . . .

The end of a religious society (as has already been said) is the public worship of God and, by means thereof, the acquisition of eternal life. All discipline ought, therefore, to tend to that end, and all ecclesiastical laws to be thereunto confined. Nothing ought nor can be transacted in this society relating to the possession of civil and worldly goods. No force is here to be made use of upon any occasion whatsoever. For force belongs wholly to the civil magistrate, and the possession of all outward goods is subject to his jurisdiction.

But, it may be asked, by what means then shall ecclesiastical laws be established, if they must be thus destitute of all compulsive power? I answer: They must be established by means suitable to the nature of such things, whereof the external profession and observation — if not proceeding from a thorough conviction and approbation of the mind — is altogether useless and unprofitable. The arms by which the members of this society are to be kept within their duty are exhortations, admonitions, and advices. If by these means the offenders will not be reclaimed, and the erroneous convinced, there remains nothing further to be done but that such stubborn and obstinate persons, who give no ground to hope for their reformation, should be cast out and separated from the society. This is the last and utmost force of ecclesiastical authority. No other punishment can thereby be inflicted than that, the relation ceasing between the body and the member which is cut off. The person so condemned ceases to be a part of that church.

These things being thus determined, let us inquire, in the next place: How far the duty of toleration extends, and what is required from everyone by it?

And, first, I hold that no church is bound, by the duty of toleration, to retain any such person in her bosom as, after admonition, continues obstinately to offend against the laws of the society. For, these being the condition of communion and the bond of the society, if the breach of them were permitted without any animadversion the society would immediately be thereby dissolved. But, nevertheless, in all such cases care is to be taken that the sentence of excommunication, and the execution thereof, carry with it no rough usage of word or action whereby the ejected person may any wise be damnified in body or estate. For all force (as has often been said) belongs only to the magistrate, nor ought any private persons at any time to use force, unless it be in self-defence against unjust violence. Excommunication neither does, nor can, deprive the excommunicated person of any of those civil goods that he formerly possessed. All those things belong to the civil government and are under the magistrate's protection. The whole force of excommunication consists only in this: that, the resolution of the society in that respect being declared, the union that was between the body and some member comes thereby to be dissolved; and, that relation ceasing, the participation of some certain things which the society communicated to its members, and unto which no man has any civil right, comes also to cease. For there is no civil injury done unto the excommunicated person by the church minister's refusing him that bread and wine, in the celebration of the Lord's Supper, which was not bought with his but other men's money.

Secondly, no private person has any right in any manner to prejudice another person in his civil enjoyments because he is of another church or religion. All the rights and franchises that belong to him as a man, or as a denizen, are inviolably to be preserved to him. These are not the business of religion. No violence nor injury is to be offered him, whether he be Christian or Pagan. Nay, we must not content ourselves with the narrow measures of bare justice; charity, bounty, and liberality must be added to it. This the Gospel enjoins, this reason directs, and this that natural fellowship we are born into requires of us. If any man err from the right way, it is his own misfortune, no injury to thee; nor therefore art thou to punish him in the things of this life because thou supposest he will be miserable in that which is to come.

What I say concerning the mutual toleration of private persons differing from one another in religion, I understand also of particular churches which stand, as it were, in the same relation to each other as private persons among themselves: nor has any one of them any manner of jurisdiction over any other; no, not even when the civil magistrate (as it sometimes happens) comes to be of this or the other communion. For the civil government can give no new right to the church, nor the church to the civil government. So that, whether the magistrate join himself to any church, or separate from it, the church remains always as it was before — a free and voluntary society. It neither requires the power of the sword by the magistrate's coming to it, nor does it lose the right of instruction and excommunication by his going from it. This is the fundamental and immutable right of a spontaneous society — that it has power to remove any of its members who transgress the rules of its institution; but it cannot, by the accession of any new members, acquire any right of jurisdiction over those that are not joined with it. And therefore peace, equity, and friendship are always mutually to be observed by particular churches, in the same manner as by private persons, without any pretence of superiority or jurisdiction over one another.

. . . It is in vain for an unbeliever to take up the outward show of another man's profession. Faith only and inward sincerity are the things that procure acceptance with God. The most likely and most approved remedy can have no effect upon the patient, if his stomach reject it as soon as taken; and you will in vain cram a medicine down a sick man's throat, which his particular constitution will be sure to turn into poison. In a word, whatsoever may be doubtful in religion, yet this at least is certain, that no religion which I believe not to be true can be either true or profitable unto me. In vain, therefore, do princes compel their subjects to come into their Church communion, under pretence of saving their souls. If they believe, they will come of their own accord, if they believe not, their coming will nothing avail them. How great soever, in fine, may be the pretence of good-will and charity, and concern for the salvation of men's souls, men cannot be forced to be saved whether they will or no. And therefore, when all is done, they must be left to their own consciences.

Having thus at length freed men from all dominion over one another in matters of religion, let us now consider what they are to do. All men know and acknowledge that God ought to be publicly worshipped; why otherwise do they compel one another unto the public assemblies? Men, therefore, constituted in this liberty are to enter into some religious society, that they meet together, not only for mutual edification, but to own to the world that they worship God and offer unto His Divine Majesty such service as they themselves are not ashamed of and such as they think not unworthy of Him, nor unacceptable to Him; and, finally, that by the purity of doctrine, holiness of life, and decent form of worship, they may draw others unto the love of the true religion, and perform such other things in religion as cannot be done by each private man apart.

These religious societies I call Churches; and these, I say, the magistrate ought to tolerate, for the business of these assemblies of the people is nothing but what is lawful for every man in particular to take care of — I mean the salvation of their souls; nor in this case is there any difference between the National Church and other separated congregations.

But as in every Church there are two things especially to be considered — the outward form and rites of worship, and the doctrines and articles of things must be handled each distinctly that so the whole matter of toleration may the more clearly be understood.

Concerning outward worship, I say, in the first place, that the magistrate has no power to enforce by law, either in his own Church, or much less in another, the use of any rites or ceremonies whatsoever in the worship of God. And this, not only because these Churches are free societies, but because whatsoever is practised in the worship of God is only so far justifiable as it is believed by those that practise it to be acceptable unto Him. Whatsoever is not done with that assurance of faith is neither well in itself, nor can it be acceptable to God. To impose such things, therefore, upon any people, contrary to their own judgment, is in effect to command them to offend God, which, considering that the end of all religion is to please Him, and that liberty is essentially necessary to that end, appears to be absurd beyond expression.

But perhaps it may be concluded from hence that I deny unto the magistrate all manner of power about indifferent things, which, if it be not granted, the whole subject-matter of law-making is taken away. No, I readily grant that indifferent things, and perhaps none but such, are subjected to the legislative power. But it does not therefore follow that the magistrate may ordain whatsoever he pleases concerning anything that is indifferent. The public good is the rule and measure of all law-making. If a thing be not useful to the commonwealth, though it be never so indifferent, it may not presently be established by law.

And further, things never so indifferent in their own nature, when they are brought into the Church and worship of God, are removed out of the reach of the magistrate's jurisdiction, because in that use they have no connection at all with civil affairs. The only business of the Church is the salvation of souls, and it no way concerns the commonwealth, or any member of it, that this or the other ceremony be there made use of. Neither the use nor the omission of any ceremonies in those religious assemblies does either advantage or prejudice the life, liberty, or estate of any man. For example, let it be granted that the washing of an infant with water is in itself an indifferent thing, let it be granted also that the magistrate understand such washing to be profitable to the curing or preventing of any disease the children are subject unto, and esteem the matter weighty enough to be taken care of by a law. In that case he may order it to be done. But will any one therefore say that a magistrate has the same right to ordain by law that all children shall be baptised by priests in the sacred font in order to the purification of their souls? The extreme difference of these two cases is visible to every one at first sight. Or let us apply the last case to the child of a Jew, and the thing speaks itself. For what hinders but a Christian magistrate may have subjects that are Jews? Now, if we acknowledge that such an injury may not be done unto a Jew as to compel him, against his own opinion, to practise in his religion a thing that is in its nature indifferent, how can we maintain that anything of this kind may be done to a Christian? . . .

But it will be here asked: “If nothing belonging to divine worship be left to human discretion, how is it then that Churches themselves have the power of ordering anything about the time and place of worship and the like?” To this I answer that in religious worship we must distinguish between what is part of the worship itself and what is but a circ*mstance. That is a part of the worship which is believed to be appointed by God and to be well-pleasing to Him, and therefore that is necessary. Circ*mstances are such things which, though in general they cannot be separated from worship, yet the particular instances or modifications of them are not determined, and therefore they are indifferent. Of this sort are the time and place of worship, habit and posture of him that worships. These are circ*mstances, and perfectly indifferent, where God has not given any express command about them. For example: amongst the Jews the time and place of their worship and the habits of those that officiated in it were not mere circ*mstances, but a part of the worship itself, in which, if anything were defective, or different from the institution, they could not hope that it would be accepted by God. But these, to Christians under the liberty of the Gospel, are mere circ*mstances of worship, which the prudence of every Church may bring into such use as shall be judged most subservient to the end of order, decency, and edification. But, even under the Gospel, those who believe the first or the seventh day to be set apart by God, and consecrated still to His worship, to them that portion of time is not a simple circ*mstance, but a real part of Divine worship, which can neither be changed nor neglected.

In the next place: As the magistrate has no power to impose by his laws the use of any rites and ceremonies in any Church, so neither has he any power to forbid the use of such rites and ceremonies as are already received, approved, and practised by any Church; because, if he did so, he would destroy the Church itself: the end of whose institution is only to worship God with freedom after its own manner.

You will say, by this rule, if some congregations should have a mind to sacrifice infants, or (as the primitive Christians were falsely accused) lustfully pollute themselves in promiscuous uncleanness, or practise any other such heinous enormities, is the magistrate obliged to tolerate them, because they are committed in a religious assembly? I answer: No. These things are not lawful in the ordinary course of life, nor in any private house; and therefore neither are they so in the worship of God, or in any religious meeting. But, indeed, if any people congregated upon account of religion should be desirous to sacrifice a calf, I deny that that ought to be prohibited by a law. Meliboeus, whose calf it is, may lawfully kill his calf at home, and burn any part of it that he thinks fit. For no injury is thereby done to any one, no prejudice to another man's goods. And for the same reason he may kill his calf also in a religious meeting. Whether the doing so be well-pleasing to God or no, it is their part to consider that do it. The part of the magistrate is only to take care that the commonwealth receive no prejudice, and that there be no injury done to any man, either in life or estate. And thus what may be spent on a feast may be spent on a sacrifice. But if peradventure such were the state of things that the interest of the commonwealth required all slaughter of beasts should be forborne for some while, in order to the increasing of the stock of cattle that had been destroyed by some extraordinary murrain, who sees not that the magistrate, in such a case, may forbid all his subjects to kill any calves for any use whatsoever? Only it is to be observed that, in this case, the law is not made about a religious, but a political matter; nor is the sacrifice, but the slaughter of calves, thereby prohibited.

By this we see what difference there is between the Church and the Commonwealth. Whatsoever is lawful in the Commonwealth cannot be prohibited by the magistrate in the Church. Whatsoever is permitted unto any of his subjects for their ordinary use, neither can nor ought to be forbidden by him to any sect of people for their religious uses. If any man may lawfully take bread or wine, either sitting or kneeling in his own house, the law ought not to abridge him of the same liberty in his religious worship; though in the Church the use of bread and wine be very different and be there applied to the mysteries of faith and rites of Divine worship. But those things that are prejudicial to the commonweal of a people in their ordinary use and are, therefore, forbidden by laws, those things ought not to be permitted to Churches in their sacred rites. Only the magistrate ought always to be very careful that he do not misuse his authority to the oppression of any Church, under pretence of public good.

It may be said: “What if a Church be idolatrous, is that also to be tolerated by the magistrate?” I answer: What power can be given to the magistrate for the suppression of an idolatrous Church, which may not in time and place be made use of to the ruin of an orthodox one? For it must be remembered that the civil power is the same everywhere, and the religion of every prince is orthodox to himself. . . .

But idolatry, say some, is a sin and therefore not to be tolerated. If they said it were therefore to be avoided, the inference were good. But it does not follow that because it is a sin it ought therefore to be punished by the magistrate. For it does not belong unto the magistrate to make use of his sword in punishing everything, indifferently, that he takes to be a sin against God. Covetousness, uncharitableness, idleness, and many other things are sins by the consent of men, which yet no man ever said were to be punished by the magistrate. The reason is because they are not prejudicial to other men's rights, nor do they break the public peace of societies. Nay, even the sins of lying and perjury are nowhere punishable by laws; unless, in certain cases, in which the real turpitude of the thing and the offence against God are not considered, but only the injury done unto men's neighbours and to the commonwealth. And what if in another country, to a Mahometan or a Pagan prince, the Christian religion seem false and offensive to God; may not the Christians for the same reason, and after the same manner, be extirpated there? . . .

Further, the magistrate ought not to forbid the preaching or professing of any speculative opinions in any Church because they have no manner of relation to the civil rights of the subjects. If a Roman Catholic believe that to be really the body of Christ which another man calls bread, he does no injury thereby to his neighbour. If a Jew do not believe the New Testament to be the Word of God, he does not thereby alter anything in men's civil rights. If a heathen doubt of both Testaments, he is not therefore to be punished as a pernicious citizen. The power of the magistrate and the estates of the people may be equally secure whether any man believe these things or no. I readily grant that these opinions are false and absurd. But the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth and of every particular man's goods and person. And so it ought to be. For the truth certainly would do well enough if she were once left to shift for herself. She seldom has received and, I fear, never will receive much assistance from the power of great men, to whom she is but rarely known and more rarely welcome. She is not taught by laws, nor has she any need of force to procure her entrance into the minds of men. Errors, indeed, prevail by the assistance of foreign and borrowed succours. But if Truth makes not her way into the understanding by her own light, she will be but the weaker for any borrowed force violence can add to her. Thus much for speculative opinions. Let us now proceed to practical ones.

A good life, in which consist not the least part of religion and true piety, concerns also the civil government; and in it lies the safety both of men's souls and of the commonwealth. Moral actions belong, therefore, to the jurisdiction both of the outward and inward court; both of the civil and domestic governor; I mean both of the magistrate and conscience. Here, therefore, is great danger, lest one of these jurisdictions intrench upon the other, and discord arise between the keeper of the public peace and the overseers of souls. But if what has been already said concerning the limits of both these governments be rightly considered, it will easily remove all difficulty in this matter.

Every man has an immortal soul, capable of eternal happiness or misery; whose happiness depending upon his believing and doing those things in this life which are necessary to the obtaining of God's favour, and are prescribed by God to that end. It follows from thence, first, that the observance of these things is the highest obligation that lies upon mankind and that our utmost care, application, and diligence ought to be exercised in the search and performance of them; because there is nothing in this world that is of any consideration in comparison with eternity. Secondly, that seeing one man does not violate the right of another by his erroneous opinions and undue manner of worship, nor is his perdition any prejudice to another man's affairs, therefore, the care of each man's salvation belongs only to himself. But I would not have this understood as if I meant hereby to condemn all charitable admonitions and affectionate endeavours to reduce men from errors, which are indeed the greatest duty of a Christian. Any one may employ as many exhortations and arguments as he pleases, towards the promoting of another man's salvation. But all force and compulsion are to be forborne. Nothing is to be done imperiously. Nobody is obliged in that matter to yield obedience unto the admonitions or injunctions of another, further than he himself is persuaded. Every man in that has the supreme and absolute authority of judging for himself. And the reason is because nobody else is concerned in it, nor can receive any prejudice from his conduct therein.

But besides their souls, which are immortal, men have also their temporal lives here upon earth; the state whereof being frail and fleeting, and the duration uncertain, they have need of several outward conveniences to the support thereof, which are to be procured or preserved by pains and industry. For those things that are necessary to the comfortable support of our lives are not the spontaneous products of nature, nor do offer themselves fit and prepared for our use. This part, therefore, draws on another care and necessarily gives another employment. But the pravity of mankind being such that they had rather injuriously prey upon the fruits of other men's labours than take pains to provide for themselves, the necessity of preserving men in the possession of what honest industry has already acquired and also of preserving their liberty and strength, whereby they may acquire what they farther want, obliges men to enter into society with one another, that by mutual assistance and joint force they may secure unto each other their properties, in the things that contribute to the comfort and happiness of this life, leaving in the meanwhile to every man the care of his own eternal happiness, the attainment whereof can neither be facilitated by another man's industry, nor can the loss of it turn to another man's prejudice, nor the hope of it be forced from him by any external violence. But, forasmuch as men thus entering into societies, grounded upon their mutual compacts of assistance for the defence of their temporal goods, may, nevertheless, be deprived of them, either by the rapine and fraud of their fellow citizens, or by the hostile violence of foreigners, the remedy of this evil consists in arms, riches, and multitude of citizens; the remedy of the other in laws; and the care of all things relating both to one and the other is committed by the society to the civil magistrate. This is the original, this is the use, and these are the bounds of the legislative (which is the supreme) power in every commonwealth. I mean that provision may be made for the security of each man's private possessions; for the peace, riches, and public commodities of the whole people; and, as much as possible, for the increase of their inward strength against foreign invasions.

These things being thus explained, it is easy to understand to what end the legislative power ought to be directed and by what measures regulated; and that is the temporal good and outward prosperity of the society; which is the sole reason of men's entering into society, and the only thing they seek and aim at in it. And it is also evident what liberty remains to men in reference to their eternal salvation, and that is that every one should do what he in his conscience is persuaded to be acceptable to the Almighty, on whose good pleasure and acceptance depends their eternal happiness. For obedience is due, in the first place, to God and, afterwards to the laws.

But some may ask: “What if the magistrate should enjoin anything by his authority that appears unlawful to the conscience of a private person?” I answer that, if government be faithfully administered and the counsels of the magistrates be indeed directed to the public good, this will seldom happen. But if, perhaps, it do so fall out, I say, that such a private person is to abstain from the action that he judges unlawful, and he is to undergo the punishment which it is not unlawful for him to bear. For the private judgement of any person concerning a law enacted in political matters, for the public good, does not take away the obligation of that law, nor deserve a dispensation. But if the law, indeed, be concerning things that lie not within the verge of the magistrate’s authority (as, for example, that the people, or any party amongst them, should be compelled to embrace a strange religion, and join in the worship and ceremonies of another Church), men are not in these cases obliged by that law, against their consciences. For the political society is instituted for no other end, but only to secure every man's possession of the things of this life. The care of each man's soul and of the things of heaven, which neither does belong to the commonwealth nor can be subjected to it, is left entirely to every man’s self. Thus the safeguard of men's lives and of the things that belong unto this life is the business of the commonwealth; and the preserving of those things unto their owners is the duty of the magistrate. And therefore the magistrate cannot take away these worldly things from this man or party and give them to that; nor change propriety amongst fellow subjects (no not even by a law), for a cause that has no relation to the end of civil government, I mean for their religion, which whether it be true or false does no prejudice to the worldly concerns of their fellow subjects, which are the things that only belong unto the care of the commonwealth.

But what if the magistrate believe such a law as this to be for the public good? I answer: As the private judgement of any particular person, if erroneous, does not exempt him from the obligation of law, so the private judgement (as I may call it) of the magistrate does not give him any new right of imposing laws upon his subjects, which neither was in the constitution of the government granted him, nor ever was in the power of the people to grant, much less if he make it his business to enrich and advance his followers and fellow-sectaries with the spoils of others. But what if the magistrate believe that he has a right to make such laws and that they are for the public good, and his subjects believe the contrary? Who shall be judge between them? I answer: God alone. For there is no judge upon earth between the supreme magistrate and the people. God, I say, is the only judge in this case, who will retribute unto every one at the last day according to his deserts; that is, according to his sincerity and uprightness in endeavouring to promote piety, and the public weal, and peace of mankind. But What shall be done in the meanwhile? I answer: The principal and chief care of every one ought to be of his own soul first, and, in the next place, of the public peace; though yet there are very few will think it is peace there, where they see all laid waste. . . .

Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration. As for other practical opinions, though not absolutely free from all error, if they do not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated. . . .

It is not the diversity of opinions (which cannot be avoided), but the refusal of toleration to those that are of different opinions (which might have been granted), that has produced all the bustles and wars that have been in the Christian world upon account of religion. The heads and leaders of the Church, moved by avarice and insatiable desire of dominion, making use of the immoderate ambition of magistrates and the credulous superstition of the giddy multitude, have incensed and animated them against those that dissent from themselves, by preaching unto them, contrary to the laws of the Gospel and to the precepts of charity, that schismatics and heretics are to be outed of their possessions and destroyed. And thus have they mixed together and confounded two things that are in themselves most different, the Church and the commonwealth. . . .

A Bill for Establishing Religious Freedom

Thomas Jefferson

June 18, 1779

Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds; thatAlmighty God hath created the mind free,and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraintthat all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion,who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do,but to extend it by its influence on reason alone; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time: That to compel a man to furnish contributions of money for the propagation of opinions which he disbelievesand abhorsis sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness; and is withdrawing from the ministry those temporaryrewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependanceon our religious opinions, any more thanour opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right; that it tends alsoto corrupt the principles of thatveryreligion it is meant to encourage, by bribing, with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way;that the opinions of men are not the object of civil government, nor under its jurisdiction;that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous falacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.

We the General Assembly of Virginia do enactthat no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this actirrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the naturalrights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

Memorial and Remonstrance against Religious Assessments

James Madison

June 20, 1785

To the Honorable the General Assembly of the Commonwealth of Virginia A Memorial and Remonstrance

We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,

1. Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." [Virginia Declaration of Rights, art. 16] The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

2. Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

4. Because the Bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are by nature equally free and independent," [Virginia Declaration of Rights, art. 1] all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." [Virginia Declaration of Rights, art. 16] Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable? Can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.

5. Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation.

6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.

7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive State in which its Teachers depended on the voluntary rewards of their flocks, many of them predict its downfall. On which Side ought their testimony to have greatest weight, when for or when against their interest?

8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within the cognizance of Civil Government how can its legal establishment be necessary to Civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries. A just Government instituted to secure & perpetuate it needs them not. Such a Government will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.

9. Because the proposed establishment is a departure from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain repose from his Troubles.

10. Because it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms.

11. Because it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bounds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed "that Christian forbearance, love and charity," [Virginia Declaration of Rights, art. 16] which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law?

12. Because the policy of the Bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of revelation from coming into the Region of it; and countenances by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of Levelling as far as possible, every obstacle to the victorious progress of Truth, the Bill with an ignoble and unchristian timidity would circ*mscribe it with a wall of defence against the encroachments of error.

13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority?

14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens, and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. "The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly." But the representation must be made equal, before the voice either of the Representatives or of the Counties will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.

15. Because finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the "Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of Government," it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the Will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enact into law the Bill under consideration. We the Subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their Councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his blessing, may redound to their own praise, and may establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.

McGowan v. Maryland

366 U.S. 420 (1961)

Mr. Chief Justice WARREN delivered the opinion of the Court.

The issues in this case concern the constitutional validity of Maryland criminal statutes, commonly known as Sunday Closing Laws or Sunday Blue Laws. These statutes, with exceptions to be noted hereafter, generally proscribe all labor, business and other commercial activities on Sunday. The questions presented are whether the classifications within the statutes bring about a denial of equal protection of the law, whether the laws are so vague as to fail to give reasonable notice of the forbidden conduct and therefore violate due process, and whether the statutes are laws respecting an establishment of religion or prohibiting the free exercise thereof.

Appellants are seven employees of a large discount department store located on a highway in Anne Arundel County, Maryland. They were indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of Md.Ann.Code, Art. 27, s 521. Generally, this section prohibited, throughout the State, the Sunday sale of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruits, gasoline, oils, greases, drugs and medicines, and newspapers and periodicals. Recently amended, this section also now excepts from the general prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs. It now further provides that any retail establishment in Anne Arundel County which does not employ more than one person other than the owner may operate on Sunday.

. . . Several sections of the Maryland statutes are particularly relevant to evaluation of the issues presented. Section 492 of Md.Ann.Code, Art. 27, forbids all persons from doing any work or bodily labor on Sunday and forbids permitting children or servants to work on that day or to engage in fishing, hunting and unlawful pastimes or recreations. The section excepts all works of necessity and charity. Section 522 of Md.Ann.Code, Art. 27, disallows the opening or use of any dancing saloon, opera house, bowling alley or barber shop on Sunday. However, in addition to the exceptions noted above, Md.Ann.Code, Art. 27, s 509, exempts, for Anne Arundel County, the Sunday operation of any bathing beach, bathhouse, dancing saloon and amusem*nt park, and activities incident thereto and retail sales of merchandise customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses. Section 90 of Md.Ann.Code, Art. 2B, makes generally unlawful the sale of alcoholic beverages on Sunday. However, this section, and immediately succeeding ones, provide various immunities for the Sunday sale of different kinds of alcoholic beverages, at different hours during the day, by vendors holding different types of licenses, in different political divisions of the State—particularly in Anne Arundel County.

The remaining statutory sections concern a myriad of exceptions for various counties, districts of counties, cities and towns throughout the State. Among the activities allowed in certain areas on Sunday are such sports as football, baseball, golf, tennis, bowling, croquet, basketball, lacrosse, soccer, hockey, swimming, softball, boating, fishing, skating, horseback riding, stock car racing and pool or billiards. Other immunized activities permitted in some regions of the State include group singing or playing of musical instruments; the exhibition of motion pictures; dancing; the operation of recreation centers, picnic grounds, swimming pools, skating rinks and miniature golf courses. The taking of oysters and the hunting or killing of game is generally forbidden, but shooting conducted by organized rod and gun clubs is permitted in one county. In some of the subdivisions within the State, the exempted Sunday activities are sanctioned throughout the day; in others, they may not commence until early afternoon or evening; in many, the activities may only be conducted during the afternoon and late in the evening. Certain localities do not permit the allowed Sunday activity to be carried on within one hundred yards of any church where religious services are being held. Local ordinances and regulations concerning certain limited activities supplement the State's statutory scheme. In Anne Arundel County, for example, slot machines, pinball machines and bingo may be played on Sunday. . . .


The final questions for decision are whether the Maryland Sunday Closing Laws conflict with the Federal Constitution's provisions for religious liberty. First, appellants contend here that the statutes applicable to Anne Arundel County violate the constitutional guarantee of freedom of religion in that the statutes' effect is to prohibit the free exercise of religion in contravention of the First Amendment, made applicable to the States by the Fourteenth Amendment. But appellants allege only economic injury to themselves; they do not allege any infringement of their own religious freedoms due to Sunday closing. In fact, the record is silent as to what appellants' religious beliefs are. Since the general rule is that ‘a litigant may only assert his own constitutional rights or immunities,’ we hold that appellants have no standing to raise this contention. Furthermore, since appellants do not specifically allege that the statutes infringe upon the religious beliefs of the department store's present or prospective patrons, we have no occasion here to consider the standing question of Pierce v. Society of Sisters. Those persons whose religious rights are allegedly impaired by the statutes are not without effective ways to assert these rights. Appellants present no weighty countervailing policies here to cause an exception to our general principles.

Secondly, appellants contend that the statutes violate the guarantee of separation of church and state in that the statutes are laws respecting an establishment of religion contrary to the First Amendment, made applicable to the States by the Fourteenth Amendment. If the purpose of the ‘establishment’ clause was only to insure protection for the ‘free exercise’ of religion, then what we have said above concerning appellants' standing to raise the ‘free exercise’ contention would appear to be true here. However, the writings of Madison, who was the First Amendment's architect, demonstrate that the establishment of a religion was equally feared because of its tendencies to political tyranny and subversion of civil authority. . . . Appellants here concededly have suffered direct economic injury, allegedly due to the imposition on them of the tenets of the Christian religion. We find that, in these circ*mstances, these appellants have standing to complain that the statutes are laws respecting an establishment of religion.

The essence of appellants' ‘establishment’ argument is that Sunday is the Sabbath day of the predominant Christian sects; that the purpose of the enforced stoppage of labor on that day is to facilitate and encourage church attendance; that the purpose of setting Sunday as a day of universal rest is to induce people with no religion or people with marginal religious beliefs to join the predominant Christian sects; that the purpose of the atmosphere of tranquility created by Sunday closing is to aid the conduct of church services and religious observance of the sacred day. In substantiating their ‘establishment’ argument, appellants rely on the wording of the present Maryland statutes, on earlier versions of the current Sunday laws and on prior judicial characterizations of these laws by the Maryland Court of Appeals. Although only the constitutionality of s 521, the section under which appellants have been convicted, is immediately before us in this litigation, inquiry into the history of Sunday Closing Laws in our country, in addition to an examination of the Maryland Sunday closing statutes in their entirety and of their history, is relevant to the decision of whether the Maryland Sunday law in question is one respecting an establishment of religion. There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces. But what we must decide is whether present Sunday legislation, having undergone extensive chances from the earliest forms, still retains its religious character.

Sunday Closing Laws go far back into American history, having been brought to the colonies with a background of English legislation dating to the thirteenth century. In 1237, Henry III forbade the frequenting of markets on Sunday; the Sunday showing of wools at the staple was banned by Edward III in 1354; in 1409, Henry IV prohibited the playing of unlawful games on Sunday; Henry VI proscribed Sunday fairs in churchyards in 1444 and, four years later, made unlawful all fairs and markets and all showings of any goods or merchandise; Edward VI disallowed Sunday bodily labor by several injunctions in the mid-sixteenth century; various Sunday sports and amusem*nts were restricted in 1625 by Charles I. . . .

The American colonial Sunday restrictions arose soon after settlement. Starting in 1650, the Plymouth Colony proscribed servile work, unnecessary travelling, sports, and the sale of alcoholic beverages on the Lord's day and enacted laws concerning church attendance. The Massachusetts Bay Colony and the Connecticut and New Haven Colonies enacted similar prohibitions, some even earlier in the seventeenth century. The religious orientation of the colonial statutes was equally apparent. For example, a 1629 Massachusetts Bay instruction began, ‘And to the end the Sabbath may be celebrated in a religious manner.’ A 1653 enactment spoke of Sunday activities ‘which things tend much to the dishonor of God, the reproach of religion, and the profanation of his holy Sabbath, the sanctification whereof is sometimes put for all duties immediately respecting the service of God.’ These laws persevered after the Revolution and, at about the time of the First Amendment's adoption, each of the colonies had laws of some sort restricting Sunday labor.

But, despite the strongly religious origin of these laws, beginning before the eighteenth century, nonreligious arguments for Sunday closing began to be heard more distinctly and the statutes began to lose some of their totally religious flavor. In the middle 1700's, Blackstone wrote, ‘(T)he keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes; which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness.’ A 1788 English statute dealing with chimney sweeps, in addition to providing for their Sunday religious affairs, also regulated their hours of work. The preamble to a 1679 Rhode Island enactment stated that the reason for the ban on Sunday employment was that ‘persons being evill minded, have presumed to employ in servile labor, more than necessity requireth, their servants. The New York law of 1788 omitted the term ‘Lord's day’ and substituted ‘the first day of the week commonly called Sunday.’ Similar changes marked the Maryland statutes, discussed below. With the advent of the First Amendment, the colonial provisions requiring church attendance were soon repealed.

More recently, further secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week's work to come. In England, during the First World War, a committee investigating the health conditions of munitions workers reported that ‘if the maximum output is to be secured and maintained for any length of time, a weekly period of rest must be allowed. On economic and social grounds alike this weekly period of rest is best provided on Sunday.'

The proponents of Sunday closing legislation are no longer exclusively representatives of religious interests. Recent New Jersey Sunday legislation was supported by labor groups and trade associations; modern English Sunday legislation was promoted by the National Federation of Grocers and supported by the National Chamber of Trade, the Drapers' Chamber of Trade, and the National Union of Shop Assistants.

Throughout the years, state legislatures have modified, deleted from and added to their Sunday statutes. As evidenced by the New Jersey laws mentioned above, current changes are commonplace. Almost every State in our country presently has some type of Sunday regulation and over forty possess a relatively comprehensive system. Some of our States now enforce their Sunday legislation through Departments of Labor. Thus have Sunday laws evolved from the wholly religious sanctions that originally were enacted. . . .

This Court has considered the happenings surrounding the Virginia General Assembly’s enactment of ‘An act for establishing religious freedom,’ written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, as particularly relevant in the search for the First Amendment's meaning. In 1776, nine years before the bill's passage, Madison co-authored Virginia’s Declaration of Rights which provided, inter alia, that ‘all men are equally entitled to the free exercise of religion, according to the dictates of conscience.’ Virginia had had Sunday legislation since early in the seventeenth century; in 1776, the laws penalizing ‘maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever’ were repealed, and all dissenters were freed from the taxes levied for the support of the established church. The Sunday labor prohibitions remained; apparently, they were not believed to be inconsistent with the newly enacted Declaration of Rights. Madison had sought also to have the Declaration expressly condemn the existing Virginia establishment. This hope was finally realized when ‘A Bill for Establishing Religious Freedom’ was passed in 1785. In this same year, Madison presented to Virginia legislators ‘A Bill for Punishing Sabbath Breakers’ which provided, in part:

If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence.

This became law the following year and remained during the time that Madison fought for the First Amendment in the Congress. It was the law of Virginia, and similar laws were in force in other States, when Madison stated at the Virginia ratification convention:

Happily for the states, they enjoy the utmost freedom of religion. Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom.

In 1799, Virginia pronounced ‘An act for establishing religious freedom’ as ‘a true exposition of the principles of the bill of rights and constitution,’ and repealed all subsequently enacted legislation deemed inconsistent with it. Virginia's statute banning Sunday labor stood. . . .

In the case at bar, we find the place of Sunday Closing Laws in the First Amendment's history both enlightening and persuasive.

But in order to dispose of the case before us, we must consider the standards by which the Maryland statutes are to be measured. Here, a brief review of the First Amendment’s background proves helpful. The First Amendment states that ‘Congress shall make no law respecting an establishment of religion.’ The Amendment was proposed by James Madison on June 8, 1789, in the House of Representatives. It then read, in part:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

We are told that Madison added the word ‘national’ to meet the scruples of States which then had an established church. After being referred to committee, it was considered by the House, on August 15, 1789, acting as a Committee of the Whole. . . .

An early commentator opined that the ‘real object of the amendment was to prevent any national ecclesiastical establishment, which shold give to an hierarchy the exclusive patronage of the national government.’ But, the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a ‘broad interpretation in the light of its history and the evils it was designed forever to suppress.’ It has found that the First and Fourteenth Amendments afford protection against religious establishment for more extensive than merely to forbid a national or state church. . . .

However, it is equally true that the ‘Establishment’ Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue. . . .

In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States.

Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general well-being of our citizens. Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, week-end diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.

We now reach the Maryland statutes under review. The title of the major series of sections of the Maryland Code dealing with Sunday closing—Art. 27, ss 492—534C—is ‘Sabbath Breaking’; s 492 proscribes work or bodily labor on the ‘Lord's day,’ and forbids persons to ‘profane the Lord's day’ by gaming, fishing et cetera; s 522 refers to Sunday as the ‘Sabbath day.’ As has been mentioned above, many of the exempted Sunday activities in the various localities of the State may only be conducted during the afternoon and late evening; most Christian church services, of course, are held on Sunday morning and early Sunday evening. Finally, as previously noted, certain localities do not permit the allowed Sunday activities to be carried on within one hundred yards of any church where religious services are being held. This is the totality of the evidence of religious purpose which may be gleaned from the face of the present statute and from its operative effect.

The predecessors of the existing Maryland Sunday laws are undeniably religious in origin. The first Maryland statute dealing with Sunday activities, enacted in 1649, was entitled ‘An Act concerning Religion.’ It made it criminal to ‘profane the Sabbath or Lords day called Sunday by frequent swearing, drunkennes or by any uncivill or disorderly recreation, or by working on that day when absolute necessity doth not require it.’ A 1692 statute entitled ‘An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province,’ after first stating the importance of keeping the Lord's Day holy and sanctified and expressing concern with the breach of its observance throughout the State, then enacted a Sunday labor prohibition which was the obvious precursor of the present s 492.19 There was a re-enactment in 1696 entitled ‘An Act for Sanctifying & keeping holy the Lord's Day Commonly called Sunday.’ By 1723, the Sabbath-breaking section of the statute assumed the present form of s 492, omitting the specific prohibition against Sunday swearing and the patently religiously motivated title.

There are judicial statements in early Maryland decisions which tend to support appellants' position. In an 1834 case involving a contract calling for delivery on Sunday, the Maryland Court of Appeals remarked that ‘Ours is a christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four hours nect ensuing the midnight of Saturday.’ . . .

Considering the language and operative effect of the current statutes, we no longer find the blanket prohibition against Sunday work or bodily labor. To the contrary, we find that s 521 of Art. 27, the section which appellants violated, permits the Sunday sale of tobaccos and sweets and a long list of sundry articles which we have enumerated above; we find that s 509 of Art. 27 permits the Sunday operation of bathing beaches, amusem*nt parks and similar facilities; we find that Art. 2B, s 28, permits the Sunday sale of alcoholic beverages, products strictly forbidden by predecessor statutes; we are told that Anne Arundel County allows Sunday bingo and the Sunday playing of pinball machines and slot machines, activities generally condemned by prior Maryland Sunday legislation. Certainly, these are not works of charity or necessity. Section 521’s current stipulation that shops with only one employee may remain open on Sunday does not coincide with a religious purpose. These provisions, along with those which permit various sports and entertainments on Sunday, seem clearly to be fashioned for the purpose of providing a Sunday atmosphere of recreation, cheerfulness, repose and enjoyment. Coupled with the general proscription against other types of work, we believe that the air of the day is one of relaxation rather than one of religion.

The existing Maryland Sunday laws are not simply verbatim re-enactments of their religiously oriented antecedents. Only s 492 retains the appellation of “Lord’s day” and even that section no longer makes recitation of religious purpose. It does talk in terms of “profan(ing) the Lord’s day,” but other sections permit the activities previously thought to be profane. Prior denunciation of Sunday drunkenness is now gone. Contemporary concern with these statutes is evidenced by the dozen changes made in 1959 and by the recent enactment of a majority of the exceptions.

Finally, the relevant pronouncements of the Maryland Court of Appeals dispel any argument that the statutes' announced purpose is religious. In Hiller v. State of Maryland, the court had before it a Baltimore ordinance prohibiting Sunday baseball. The court said:

What the eminent Chief Judge said with respect to police enactments which deal with the protection of the public health, morals, and safety apply with equal force to those which are concerned with the peace, order, and quiet of the community on Sunday, for these social conditions are well recognized heads of the police power. Can the court say that this ordinance has no real and substantial relation to the peace and order and quiet of Sunday as a day of rest in the city of Baltimore?

And the Maryland court declared in its decision in the instant case: ‘The legislative plan is plain. It is to compel a day of rest from work, permitting only activities which are necessary or recreational.’ After engaging in the close scrutiny demanded of us when First Amendment liberties are at issue, we accept the State Supreme Court’s determination that the statutes’ present purpose and effect is not to aid religion but to set aside a day of rest and recreation.

But this does not answer all of appellants' contentions. We are told that the State has other means at its disposal to accomplish its secular purpose, other courses that would not even remotely or incidentally give state aid to religion. On this basis, we are asked to hold these statutes invalid on the ground that the State’s power to regulate conduct in the public interest may only be executed in a way that does not unduly or unnecessarily infringe upon the religious provisions of the First Amendment. However relevant this argument may be, we believe that the factual basis on which it rests is not supportable. It is true that if the State’s interest were simply to provide for its citizens a periodic respite from work, a regulation demanding that everyone rest one day in seven, leaving the choice of the day to the individual, would suffice.

However, the State’s purpose is not merely to provide a one-day-in-seven work stoppage. In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, recreation and tranquility—a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days.

Obviously, a State is empowered to determine that a rest-one-day-in-seven statute would not accomplish this purpose; that it would not provide for a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together. Furthermore, it seems plain that the problems involved in enforcing such a provision would be exceedingly more difficult than those in enforcing a common-day-of-rest provision.

Moreover, it is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive and active entertainments, for dining out, and the like. ‘Vast masses of our people, in fact, literally millions, go out into the countryside on fine Sunday afternoons in the Summer. Sunday is a day apart from all others. The cause is irrelevant; the fact exists. It would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare to require a State to choose a common day of rest other than that which most persons would select of their own accord. For these reasons, we hold that the Maryland statutes are not laws respecting an establishment of religion. . . .

Accordingly, the decision is affirmed.

Separate opinion of Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins.

So deeply do the issues raised by these cases cut that it is not surprising that no one opinion can wholly express the views even of all the members of the Court who join in its result. Individual opinions in constitutional controversies have been the practice throughout the Court’s history. Such expression of differences in view or even in emphasis converging toward the same result makes for the clarity of candor and thereby enhances the authority of the judicial process.

For me considerations are determinative here which call for separate statement. The long history of Sunday legislation, so decisive if we are to view the statutes now attacked in a perspective wider than that which is furnished by our own necessarily limited outlook, cannot be conveyed by a partial recital of isolated instances or events. The importance of that history derives from its continuity and fullness—from the massive testimony which it bears to the evolution of statutes controlling Sunday labor and to the forces which have, during three hundred years of Anglo-American history at the least, changed those laws, transmuted them, made them the vehicle of mixed and complicated aspirations. Since I find in the history of these statutes insights controllingly relevant to the constitutional issues before us, I am constrained to set that history forth in detail. . . . [Frankfurter’s historical account omitted].

It is urged, however, that if a day of rest were the legislative purpose, statutes to secure it would take some other form than the prohibition of activity on Sunday. Such statutes, it is argued, would provide for one day's labor stoppage in seven, leaving the choice of the day to the individual; or, alternatively, would fix a common day of rest on some other day—Monday or Tuesday. But, in all fairness, certainly, it would be impossible to call unreasonable a legislative finding that these suggested alternatives were unsatisfactory. A provision for one day’s closing per week, at the option of every particular enterpriser, might be disruptive of families whose members are employed by different enterprises. Enforcement might be more difficult, both because violation would be less easily discovered and because such a law would not be seconded, as is Sunday legislation, by the community's moral temper. More important, one-day-a-week laws do not accomplish all that is accomplished by Sunday laws. They provide only a periodic physical rest, not that atmosphere of entire community repose which Sunday has traditionally brought and which, a legislature might reasonably believe, is necessary to the welfare of those who for many generations have been accustomed to its recuperative effects.

The same considerations might also be deemed to justify the choice of Sunday as the single common day when labor ceases. For to many who do not regard it sacramentally, Sunday is nevertheless a day of special, long-established associations, whose particular temper makes it a haven that no other day could provide. The will of a majority of the community, reflected in the legislative process during scores of years, presumably prefers to take its leisure on Sunday. The spirit of any people expresses in goodly measure the heritage which links it to its past. Disruption of this heritage by a regulations which, like the unnatural labors of Claudius' shipwrights, does not divide the Sunday from the week, might prove a measure ill-designed to secure the desirable community repose for which Sunday legislation is designed. At all events, Maryland, Massachusetts and Pennsylvania, like thirty-one other States with similar regulations, could reasonably so find. Certainly, from failure to make a substitution for Sunday in securing a socially desirable day of surcease from subjection to labor and routine a purpose cannot be derived to establish or promote religion. . . .

Mr. Justice DOUGLAS, dissenting.

The question is not whether one day out of seven can be imposed by a State as a day of rest. The question is not whether Sunday can by force of custom and habit be retained as a day of rest. The question is whether a State can impose criminal sanctions on those who, unlike the Christian majority that makes up our society, worship on a different day or do not share the religious scruples of the majority. . . .

I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors.

The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the state is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect.

The Declaration of Independence stated the now familiar theme: ‘We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.’ And the body of the Constitution as well as the Bill of Rights enshrined those principles.

The Puritan influence helped shape our constitutional law and our common law as Dean Pound has said: The Puritan ‘put individual conscience and individual judgment in the first place.’ For these reasons we stated in Zorach v. Clauson, ‘We are a religious people whose institutions presuppose a Supreme Being.’

But those who fashioned the First Amendment decided that if and when God is to be served, His service will not be motivated by coercive measures of government. ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’—such is the command of the First Amendment made applicable to the State by reason of the Due Process Clause of the Fourteenth. This means, as I understand it, that if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily means, first, that the dogma, creed, scruples, or practices of no religious group or sect are to be preferred over those of any others; second, that no one shall be interfered with by government for practicing the religion of his choice; third, that the State may not require anyone to practice a religion or even any religion; and fourth, that the State cannot compel one so to conduct himself as not to offend the religious scruples of another. The idea, as I understand it, was to limit the power of government to act in religious matters, not to limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or agnostics. . . .

The issue of those cases would therefore be in better focus if we imagined that a state legislature, controlled by orthodox Jews and Seventh-Day Adventists, passed a law making it a crime to keep a shop open on Saturdays. Would a Baptist, Catholic, Methodist, or Presbyterian be compelled to obey that law or go to jail or pay a fine? Or suppose Moslems grew in political strength here and got a law through a state legislature making it a crime to keep a shop open on Fridays. Would the rest of us have to submit under the fear of criminal sanctions? . . .

The conduct held constitutionally criminal today embraces the selling of pure, not impure, food; wholesome, not noxious, articles. Adults, not minors, are involved. The innocent acts, now constitutionally classified as criminal, emphasize the drastic break we make with tradition.

These laws are sustained because, it is said, the First Amendment is concerned with religious convictions or opinion, not with conduct. But it is a strange Bill of Rights that makes it possible for the dominant religious group to bring the minority to heel because the minority, in the doing of acts which intrinsically are wholesome and not antisocial, does not defer to the majority’s religious beliefs. Some have religious scruples against eating pork. Those scruples, no matter how bizarre they might seem to some, are within the ambit of the First Amendment.Is it possible that a majority of a state legislature having those religious scruples could make it criminal for the nonbeliever to sell pork? Some have religious scruples against slaughtering cattle. Could a state legislature, dominated by that group, make it criminal to run an abattoir?

The Court balances the need of the people for rest, recreation, late sleeping, family visiting and the like against the command of the First Amendment that no one need bow to the religious beliefs of another. There is in this realm no room for balancing. I see no place for it in the constitutional scheme. A legislature of Christians can no more make minorities conform to their weekly regime than a legislature of Moslems, or a legislature of Hindus. The religious regime of every group must be respected—unless it crosses the line of criminal conduct. But no one can be forced to come to a halt before it, or refrain from doing things that would offend it. That is my reading of the Establishment Clause and the Free Exercise Clause. Any other reading imports, I fear, an element common in other societies but foreign to us. Thus Nigeria in Article 23 of her Constitution, after guaranteeing religious freedom, adds, ‘Nothing in this section shall invalidate any law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality, or public health.’ That may be a desirable provision. But when the Court adds it to our First Amendment, as it does today, we make a sharp break with the American ideal of religious liberty as enshrined in the First Amendment.

The State can, of course, require one day of rest a week: one day when every shop or factory is closed. Quite a few States make that requirement. Then the “day of rest” becomes purely and simply a health measure. But the Sunday laws operate differently. They force minorities to obey the majority’s religious feelings of what is due and proper for a Christian community; they provide a coercive spur to the “weaker brethren,” to those who are indifferent to the claims of a Sabbath through apathy or scruple. Can there be any doubt that Christians, now aligned vigorously in favor of these laws, would be as strongly opposed if they were prosecuted under a Moslem law that forbade them from engaging in secular activities on days that violated Moslem scruples?

There is an “establishment” of religion in the constitutional sense if any practice of any religious group has the sanction of law behind it. There is an interference with the “free exercise” of religion if what in conscience one can do or omit doing is required because of the religious scruples of the community. Hence I would declare each of those laws unconstitutional as applied to the complaining parties, whether or not they are members of a sect which observes as its Sabbath a day other than Sunday. . . .

Braunfeld v. Brown

366 U.S. 599 (1961)

Mr. Chief Justice WARREN announced the judgment of the Court and an opinion in which Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice WHITTAKER concur.

This case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute, enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities. . . . [T]he only question for consideration is whether the statute interferes with the free exercise of appellants' religion.

Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. Each of the appellants is a member of the Orthodox Jewish faith, which requires the closing of their places of business and a total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. They instituted a suit in the court below seeking a permanent injunction against the enforcement of the 1959 statute. Their complaint, as amended, alleged that appellants had previously kept their places of business open on Sunday; that each of appellants had done a substantial amount of business on Sunday, compensating somewhat for their closing on Saturday; that Sunday closing will result in impairing the ability of all appellants to earn a livelihood and will render appellant Braunfeld unable to continue in his business, thereby losing his capital investment; that the statute is unconstitutional for the reasons stated above. . . .

Appellants contend that the enforcement against them of the Pennsylvania statute will prohibit the free exercise of their religion because, due to the statute's compulsion to close on Sunday, appellants will suffer substantial economic loss, to the benefit of their non-Sabbatarian competitors, if appellants also continue their Sabbath observance by closing their businesses on Saturday; that this result will either compel appellants to give up their Sabbath observance, a basic tenet of the Orthodox Jewish faith, or will put appellants at a serious economic disadvantage if they continue to adhere to their Sabbath. Appellants also assert that the statute will operate so as to hinder the Orthodox Jewish faith in gaining new adherents. And the corollary to these arguments is that if the free exercise of appellants' religion is impeded, that religion is being subjected to discriminatory treatment by the State.

In McGowan v. Maryland, we noted the significance that this Court has attributed to the development of religious freedom in Virginia in determining the scope of the First Amendment's protection. We observed that when Virginia passed its Declaration of Rights in 1776, providing that ‘all men are equally entitled to the free exercise of religion,’ Virginia repealed its laws which in any way penalized ‘maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever.’ But Virginia retained its laws prohibiting Sunday labor.

We also took cognizance, in McGowan, of the evolution of Sunday Closing Laws from wholly religious sanctions to legislation concerned with the establishment of a day of community tranquillity, respite and recreation, a day when the atmosphere is one of calm and relaxation rather than one of commercialism, as it is during the other six days of the week. We reviewed the still growing state preoccupation with improving the health, safety, morals and general well-being of our citizens.

Concededly, appellants and all other persons who wish to work on Sunday will be burdened economically by the State's day of rest mandate; and appellants point out that their religion requires them to refrain from work on Saturday as well. Our inquiry then is whether, in these circ*mstances, the First and Fourteenth Amendments forbid application of the Sunday Closing Law to appellants.

Certain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. . . . . But this is not the case at bar; the statute before us does not make criminal the holding of any religious belief or opinion, nor does it force anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets.

However, the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions. . . . [L]egislative power over mere opinion is forbidden but it may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion. This was articulated by Thomas Jefferson when he said:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

. . . [T]he statute at bar does not make unlawful any religious practices of appellants; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law's effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to work on Sunday. And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to appellants and others similarly situated—retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor—may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.

To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature. Statutes which tax income and limit the amount which may be deducted for religious contributions impose an indirect economic burden on the observance of the religion of the citizen whose religion requires him to donate a greater amount to his church; statutes which require the courts to be closed on Saturday and Sunday impose a similar indirect burden on the observance of the religion of the trial lawyer whose religion requires him to rest on a weekday. The list of legislation of this nature is nearly limitless.

Needless to say, when entering the area of religious freedom, we must be fully cognizant of the particular protection that the Constitution has accorded it. Abhorrence of religious persecution and intolerance is a basic part of our heritage. But we are a cosmopolitan nation made up of people of almost every conceivable religious preference. These denominations number almost three hundred. Consequently, it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test for determining whether the legislation violates the freedom of religion protected by the First Amendment.

Of course, to hold unassailable all legislation regulating conduct which imposes solely an indirect burden on the observance of religion would be a gross oversimplification. If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.

As we pointed out in McGowan v. Maryland, we cannot find a State without power to provide a weekly respite from all labor and, at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tranquillity—a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself. This is particularly true in this day and age of increasing state concern with public welfare legislation.

Also, in McGowan, we examined several suggested alternative means by which it was argued that the State might accomplish its secular goals without even remotely or incidentally affecting religious freedom. We found there that a State might well find that those alternatives would not accomplish bringing about a general day of rest. We need not examine them again here.

However, appellants advance yet another means at the State’s disposal which they would find unobjectionable. They contend that the State should cut an exception from the Sunday labor proscription for those people who, because of religious conviction, observe a day of rest other than Sunday. By such regulation, appellants contend, the economic disadvantages imposed by the present system would be removed and the State's interest in having all people rest one day would be satisfied.

A number of States provide such an exemption, and this may well be the wiser solution to the problem. But our concern is not with the wisdom of legislation but with its constitutional limitation. Thus, reason and experience teach that to permit the exemption might well undermine the State's goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity. Although not dispositive of the issue, enforcement problems would be more difficult since there would be two or more days to police rather than one and it would be more difficult to observe whether violations were occurring.

Additional problems might also be presented by a regulation of this sort. To allow only people who rest on a day other than Sunday to keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must remain closed on that day; this might cause the Sunday-observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day. This might make necessary a state-conducted inquiry into the sincerity of the individual’s religious beliefs, a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees who themselves qualified for the exemption because of their own religious beliefs, a practice which a State might feel to be opposed to its general policy prohibiting religious discrimination in hiring. For all of these reasons, we cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied.

Mr. Justice Harlan concurs in the judgment. Mr. Justice Brennan and Mr. Justice Stewart concur in our disposition of appellants' claims under the Establishment Clause and the Equal Protection Clause. Mr. Justice Frankfurter and Mr. Justice Harlan have rejected appellants' claim under the Free Exercise Clause in a separate opinion [in McGowan v. Maryland]. For dissenting opinion of Mr. Justice Douglas [in this case], see [McGowan v. Maryland].

Mr. Justice BRENNAN, concurring and dissenting.

I agree with the Chief Justice that there is no merit in appellants’ establishment and equal-protection claims. I dissent, however, as to the claim that Pennsylvania has prohibited the free exercise of appellants’ religion.

The Court has demonstrated the public need for a weekly surcease from worldly labor, and set forth the considerations of convenience which have led the Commonwealth of Pennsylvania to fix Sunday as the time for that respite. I would approach this case differently, from the point of view of the individuals whose liberty is—concededly—curtailed by these enactments. For the values of the First Amendment, as embodied in the Fourteenth, look primarily towards the preservation of personal liberty, rather than towards the fulfillment of collective goals.

The appellants are small retail merchants, faithful practitioners of the Orthodox Jewish faith. They allege—and the allegation must be taken as true, since the case comes to us on a motion to dismiss the complaint—that one who does not observe the Sabbath (by refraining from labor) cannot be an Orthodox Jew.’ In appellants’ business area Friday night and Saturday are busy times; yet appellants, true to their faith, close during the Jewish Sabbath, and make up some, but not all, of the business thus lost by opening on Sunday ‘Each of the plaintiffs,’ the complaint continues, ‘does a substantial amount of business on Sundays, and the ability of the plaintiffs to earn a livelihood will be greatly impaired by closing their business establishment on Sundays.’ Consequences even more drastic are alleged: ‘Plaintiff, Abraham Braunfeld, will be unable to continue in his business if he may not stay open on Sunday and he will thereby lose his capital investment.’ In other words, the issue in this case—and we do not understand either appellees or the Court to contend otherwise—is whether a State may put an individual to a choice between his business and his religion. The Court today holds that it may. But I dissent, believing that such a law prohibits the free exercise of religion.

The first question to be resolved, however, is somewhat broader than the facts of this case. That question concerns the appropriate standard of constitutional adjudication in cases in which a statute is assertedly in conflict with the First Amendment, whether that limitation applies of its own force, or as absorbed through the less definite words of the Fourteenth Amendment. The Court in such cases is not confined to the narrow inquiry whether the challenged law is rationally related to some legitimate legislative end. Nor is the case decided by a finding that the State's interest is substantial and important, as well as rationally justifiable. . . .

This exacting standard has been consistently applied by this Court as the test of legislation under all clauses of the First Amendment, not only those specifically dealing with freedom of speech and of the press. For religious freedom—the freedom to believe and to practice strange and, it may be, foreign creeds—has classically been one of the highest values of our society. . . . Or at least so it appeared until today. For in this case the Court seems to say, without so much as a deferential nod towards that high place which we have accorded religious freedom in the past, that any substantial state interest will justify encroachments on religious practice, at least if those encroachments are cloaked in the guise of some nonreligious public purpose.

Admittedly, these laws do not compel overt affirmation of a repugnant belief, nor do they prohibit outright any of appellants' religious practices. That is, the laws do not say that appellants must work on Saturday. But their effect is that appellants may not simultaneously practice their religion and their trade, without being hampered by a substantial competitive disadvantage. Their effect is that no one may at one and the same time be an Orthodox Jew and compete effectively with his Sunday-observing fellow tradesmen. This clog upon the exercise of religion, this state-imposed burden on Orthodox Judaism, has exactly the same economic effect as a tax levied upon the sale of religious literature. And yet, such a tax, when applied in the form of an excise or license fee, was held invalid in [other cases]. All this the Court, as I read its opinion, concedes.

What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants' freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants’ freedom? It is not the desire to stamp out a practice deeply abhorred by society, such as polygamy, for the custom of resting one day a week is universally honored, as the Court has amply shown. Nor is it the State’s traditional protection of children, for appellants are reasoning and fully autonomous adults. It is not even the interest in seeing that everyone rests one day a week, for appellants' religion requires that they take such a rest. It is the mere convenience of having everyone rest on the same day. It is to defend this interest that the Court holds that a State need not follow the alternative route of granting an exemption for those who in good faith observe a day of rest other than Sunday.

It is true, I suppose, that the granting of such an exemption would make Sundays a little noisier, and the task of police and prosecutor a little more difficult. It is also true that a majority—21—of the 34 States which have general Sunday regulations have exemptions of this kind. We are not told that those States are significantly noisier, or that their police are significantly more burdened, than Pennsylvania's. Even England, not under the compulsion of a written constitution, but simply influenced by considerations of fairness, has such an exemption for some activities. . . .

Mr. Justice STEWART, dissenting.

I agree with substantially all that Mr. Justice Brennan has written. Pennsylvania has passed a law which compels an Orthodox Jew to choose between his religious faith and his economic survival. That is a cruel choice. It is a choice which I think no State can constitutionally demand. For me this is not something that can be swept under the rug and forgotten in the interest of enforced Sunday togetherness. I think the impact of this law upon these appellants grossly violates their constitutional right to the free exercise of their religion.

Reynolds v. United States

98 U.S. 145 (1878)

Mr. Chief Justice WAITE delivered the opinion of the Court.

[This case presents the question to the Court whether the accused should have been acquitted if he married the second time, because he believed it to be his religious duty.]

[The accused] proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church ‘that it was the duty of male members of said church, circ*mstances permitting, to practise polygamy; . . . that this duty was enjoined by different books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circ*mstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come.’ He also proved . . . ‘that such marriage ceremony was performed under and pursuant to the doctrines of said church.’

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he ‘was married as charged—if he was married—in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be ‘not guilty.” This request was refused, and the court [charged] ‘that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right, deliberately married a second time, having a first wife living, the [lack] of evil intent—the [lack] of understanding on his part that he was committing a crime—did not excuse him; but the law inexorably in such case implies the criminal intent.’

[T]he question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

The word “religion” is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration ‘a bill establishing provision for teachers of the Christian religion,’ postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested ‘to signify their opinion respecting the adoption of such a bill at the next session of assembly.’

This brought out a determined opposition. Amongst others, Mr. Madison prepared a ‘Memorial and Remonstrance,’ which was widely circulated and signed, and in which he demonstrated ‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government. At the next session the proposed bill was not only defeated, but another, ‘for establishing religious freedom,’ drafted by Mr. Jefferson, was passed.

In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States. Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion, but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. Five of the States, while adopting the Constitution, proposed amendments. Three—New Hampshire, New York, and Virginia—included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.

Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void, and from the earliest history of England polygamy has been treated as an offence against society.

By the statute of 1 James I., the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that ‘all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,’ the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, ‘it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.’ From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests.

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circ*mstances.

A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only.

Upon a careful consideration of the whole case, we are satisfied that no error was committed by the court below.

Davis v. Beason

133 U.S. 333 (1890)

Mr. Justice FIELD delivered the opinion of the Court.

On this appeal our only inquiry is whether the district court of the territory had jurisdiction of the offense charged in the indictment, of which the defendant was found guilty. If it had jurisdiction, we can go no further. We cannot look into any alleged errors in its rulings, on the trial of the defendant. Nor can we inquire whether the evidence established the fact alleged, that the defendant was a member of an order or organization known as the ‘Mormon Church,’ called the ‘Church of Jesus Christ of Latter-Day Saints,’ or the fact that the order of organization taught and counseled its members and devotees to commit the crimes of bigamy and polygamy, as duties arising from membership therein. On this hearing we can only consider whether, these allegations being taken as true, an offense was committed of which the territorial court had jurisdiction to try the defendant. And on this point there can be no serious discussion or difference of opinion. Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment, as aiding and abetting crime are in all other cases. The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The first amendment to the constitution, in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question. It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society. With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation. There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes, as prompted by the passions of its members. And history discloses the fact that the necessity of human sacrifices, on special occasions, has been a tenet of many sects. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their supporters could be protected in their exercise by the constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.

On this subject the observations of this court through the late Chief Justice WAITE, in Reynolds v. U. S., are pertinent. And in Murphy v. Ramsey, referring to the act of congress excluding polygamists and bigamists from voting or holding office, the court, speaking by Mr. Justice MATTHEWS, said: ‘Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.’ It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed, and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further from the truth. While legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as “religion.”

It only remains to refer to the laws which authorized the legislature of the territory of Idaho to prescribe the qualifications of voters, and the oath they were required to take. The Revised Statutes provide that ‘the legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States.’ Under this general authority it would seem that the territorial legislature was authorized to prescribe any qualifications for voters, calculated to secure obedience to its laws. But, in addition to the above law, section 1859 of the Revised Statutes provides that ‘every male citizen above the age of twenty-one, including persons who have legally declared their intention to become citizens in any territory hereafter organized, and who are actual residents of such territory at the time of the organization thereof, shall be entitled to vote at the first election in such territory, and to hold any office therein; subject, nevertheless, to the limitations specified in the next section,’ namely, that at all elections in any territory subsequently organized by congress, as well as at all elections in territories already organized, the qualifications of voters and for holding office shall be such as may be prescribed by the legislative assembly of each territory, subject, nevertheless, to the following restrictions: First, that the right of suffrage and of holding office shall be exercised only by citizens of the United States above the age of 21, or persons above that age who have declared their intention to become such citizens; second, that the elective franchise or the right of holding office shall not be denied to any citizen on account of race, color, or previous condition of servitude; third, that no soldier or sailor, or other person in the army or navy, or attached to troops in the service of the United States, shall be allowed to vote unless he has made his permanent domicile in the territory for six months; and, fourth, that no person belonging to the army or navy shall be elected to or hold a civil office or appointment in the territory. These limitations are the only ones placed upon the authority of territorial legislatures against granting the right of suffrage or of holding office. They have the power, therefore, to prescribe any reasonable qualifications of voters and for holding office, not inconsistent with the above limitations. In our judgment, section 501 of the Revised Statutes of Idaho territory, which provides that ‘no person under guardianship, non compos mentis, or insane, nor any person convicted of treason, felony, or bribery in this territory, or in any other state or territory in the Union, unless restored to civil rights; nor any person who is a bigamist or polygamist, or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization, or association which teaches, advises, counsels, or encourages its members or devotees, or any other persons, to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a rite or ceremony of such order, organization, or association, or otherwise, is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this territory,’—is not open to any constitutional or legal objection. With the exception of persons under guardianship or of unsound mind, it simply excludes from the privilege of voting, or of holding any office of honor, trust, or profit, those who have been convicted of certain offenses, and those who advocate a practical resistance to the laws of the territory, and justify and approve the commission of crimes forbidden by it. The second subdivision of section 504 of the Revised Statutes of Idaho, requiring every person desiring to have his name registered as a voter to take an oath that he does not belong to an order that advises a disregard of the criminal law of the territory, is not open to any valid legal objection to which out attention has been called.

The position that congress has, by its statute, covered the whole subject of punitive legislation against bigamy and polygamy, leaving nothing for territorial action on the subject, does not impress us as entitled to much weight. The statute of congress of March 22, 1882, amending a previous section of the Revised Statutes in reference to bigamy, declares ‘that no polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described as aforesaid in this section, in any territory or other place over which the United States have exclusive jurisdiction, shall be entitled to vote at any election held in any such territory or other place, or be eligible for election or appointment to, or be entitled to hold any office or place of public trust, honor, or emolument in, under, or for any such territory or place, or under the United States.’ This is a general law applicable to all territories and other places under the exclusive jurisdiction of the United States. It does not purport to restrict the legislation of the territories over kindred offenses, or over the means for their ascertainment and prevention. The cases in which the legislation of congress will supersede the legislation of a state or territory, without specific provisions to that effect, are those in which the same matter is the subject of legislation by both. There the action of congress may well be considered as covering the entire ground. But here there is nothing of this kind. The act of congress does not touch upon teaching, advising, and counseling the practice of bigamy and polygamy, that is, upon aiding and abetting in the commission of those crimes, nor upon the mode adopted, by means of the oath required for registration, to prevent persons from being enabled by their votes to defeat the criminal laws of the country. The judgment of the court below is therefore affirmed.

Late Corporation of the Church of Latter-Day Saints v. United States

136 U.S. 1 (1890)

On behalf of the Court, Mr. Justice BRADLEY stated the case as follows:

This case originated under and in pursuance of the act of congress, which was passed February 19, 1887, and became a law by not being returned by the president. This act, besides making additional provision with regard to the prosecution of polygamy in the territories, and other matters concerning the territory of Utah, provided, in the 13th, 17th, and 26th sections, as follows: ‘Sec. 13. That it shall be the duty of the attorney general of the United States to institute and prosecute proceedings to forfeit and escheat to the United States the property of corporations obtained or held in violation of section three of the act of congress approved the first day of July, eighteen hundred and sixty-two, entitled ‘And act to punish and prevent the practice of polygamy in the territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the territory of Utah,’ or in violation of section eighteen hundred and ninety of the Revised Statutes of the United States; and all such property so forfeited and escheated to the United States shall be disposed of by the secretary of the interior, and the proceeds thereof applied to the use of the use and benefit of the common schools in the territory in which such property may be: provided, that no building, or the grounds appurtenant thereto, which is held and occupied exclusively for purposes of the worship of God, or parsonage connected therewith, or burial-ground, shall be forfeited.’ That the acts of the legislative assembly of the territory of Utah incorporating, continuing, or providing for the corporation known as the ‘Church of Jesus Christ of Latter-Day Saints,’ and the ordinance of the so-called general assembly of the state of Deseret incorporating the Church of Jesus Christ of Latter-Day Saints, so far as the same may now have legal force and validity, are hereby disapproved and annulled, and the said corporation, in so far as it may now have, or pretend to have, any legal existence, is hereby dissolved.’

In pursuance of the thirteenth section, above recited, proceedings were instituted by information on behalf of the United States in the third district court of the territory of Utah, for the purpose of having declared forfeited and escheated to the government the real estate of the corporation called the ‘Church of Jesus Christ of Latter-Day Saints,’ except a certain block in Salt Lake City used exclusively for public worship.

The principal questions raised are-First, as to the power of congress to repeal the charter of the Church of Jesus Christ of Latter-Day Saints; and, secondly, as to the power of congress and the courts to seize the property of said corporation, and to hold the same for the purposes mentioned in the decree.

The power of congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. It would be absurd to hold that the United States has power to acquire territory, and no power to govern it when acquired. The power to acquire territory is derived from the treaty-making power, and the power to declare and carry on war. The incidents of these powers are those of national sovereignty, and belong to all independent governments. The power to make acquisitions of territory by conquest, by treaty, and by cession, is an incident of national sovereignty. The territory of Louisiana, when acquired from France, and the territories west of the Rocky mountains, when acquired from Mexico, became the absolute property and domain of the United States, subject to such conditions as the government, in its diplomatic negotiations, had seen fit to accept relating to the rights of the people then inhabiting those territories. Having rightfully acquired said territories, the United States government was the only one which could impose laws upon them, and its sovereignty over them was complete. No state of the Union had any such right of sovereignty over them; no other country or government had any such right. These propositions are so elementary, and so necessarily follow from the condition of things arising upon the acquisition of new territory, that they need no argument to support them. They are self-evident.

The supreme power of congress over the territories, and over the acts of the territorial legislatures established therein, is generally expressly reserved in the organic acts establishing governments in said territories. This is true of the territory of Utah. In the sixth section of the act establishing a territorial government in Utah, approved September 9, 1850, it is declared ‘that the legislative powers of said territory shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act. All the laws passed by the legislative assembly and governor shall be submitted to the congress of the United States, and, if disapproved, shall be null and of no effect.’

. . . It is distinctly stated in the pleadings and findings of fact that the property of the said corporation was held for the purpose of religious and charitable uses. But it is also stated in the findings of fact, and is a matter of public notoriety, that the religious and charitable uses intended to be subserved and promoted are the inculcation and spread of the doctrines and usages of the Mormon Church, or Church of Latter-Day Saints, one of the distinguishing features of which is the practice of polygamy,-a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. Notwithstanding the stringent laws which have been passed by congress,-notwithstanding all the efforts made to suppress this barbarous practice,-the sect or community composing the Church of Jesus Christ of Latter-Day Saints perseveres, in defiance of law, in preaching, upholding, promoting, and defending it. It is a matter of public notoriety that its emissaries are engaged in many countries in propagating this nefarious doctrine, and urging its converts to join the community in Utah. The existence of such a propaganda is a blot on our civilization. The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity, and of the civilization which Christianity has produced in the western world. The question, therefore, is whether the promotion of such a nefarious system and practice, so repugnant to our laws and to the principles of our civilization, is to be allowed to continue by the sanction of the government itself, and whether the funds accumulated for that purpose shall be restored to the same unlawful uses as heretofore, to the detriment of the true interests of civil society. It is unnecessary here to refer to the past history of the sect; to their defiance of the government authorities; to their attempt to establish an independent community; to their efforts to drive from the territory all who were not connected with them in communion and sympathy. The tale is one of patience on the part of the American government and people, and of contempt of authority and resistance to law on the part of the Mormons. Whatever persecutions they may have suffered in the early part of their history, in Missouri and Illinois, they have no excuse for their persistent defiance of law under the government of the United States.

One pretense for this obstinate course is that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief, and therefore under the protection of the constitutional guaranty of religious freedom. This is altogether a sophistical plea. No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief; but their thinking so did not make it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious conviction. The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that account, would hesitate to brand these practices, now, as crimes against society, and obnoxious to condemnation and punishment by the civil authority. The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced. And since polygamy has been forbidden by the laws of the United States, under severe penalties, and since the Church of Jesus Christ of Latter-Day Saints has persistently used, and claimed the right to use, and the unincorporated community still claims the same right to use, the funds with which the late corporation was endowed, for the purpose of promoting and propagating the unlawful practice as an integral part of their religious usages, the question arises whether the government, finding these funds without legal ownership, has or has not the right, through its courts, and in due course of administration, to cause them to beseized and devoted to objects of undoubted charity and usefulness,-such for example, as the maintenance of schools,-for the benefit of the community whose leaders are now misusing them in the unlawful manner above described; setting apart, however, for the exclusive possession and use of the church, sufficient and suitable portions of the property for the purposes of public worship, parsonage buildings, and burying-grounds, as provided in the law.

The property in question has been dedicated to public and charitable uses. It matters not whether it is the product of private contributions, made during the course of half a century, or of taxes imposed upon the people, or of gains arising from fortunate operations in business or appreciation in values, the charitable uses for which it is held are stamped upon it by charter, by ordinance, by regulation, and by usage, in such an indelible manner that there can be no mistake as to their character, purpose, or object. The principles of the law of charities are not confined to a particular people or nation, but prevail in all civilized countries pervaded by the spirit of Christianity. They are found imbedded in the civil law of Rome, in the laws of European nations, and especially in the laws of that nation from which our institutions are derived. A leading and prominent principle prevailing in them all is that property devoted to a charitable and worthy object, promotive of the public good, shall be applied to the purposes of its dedication, and protected from spoliation and from diversion to other objects. Though devoted to a particular use, it is considered as given to the public, and is therefore taken under the guardianship of the laws. If it cannot be applied to the particular use for which it was intended, either because the objects to be subserved have failed, or because they have become unlawful and repugnant to the public policy of the state, it will be applied to some object of kindred character, so as to fulfill in substance, if not in manner and form, the purpose of its consecration.

Then, looking at the case as the finding of facts presents it, we have before us-congress had before it-a contumacious organization, wielding by its resources an immense power in the territory of Utah, and employing those resources and that power in constantly attempting to oppose, thwart, and subvert the legislation of congress, and the will of the government of the United States. Under these circ*mstances, we have no doubt of the power of congress to do as it did. It is not our province to pass judgment upon the necessity or expediency of the act of February 19, 1887, under which this proceeding was taken. The only question we have to consider in this regard is as to the constitutional power of congress to pass it. Nor are we now called upon to declare what disposition ought to make of the property of the Church of Jesus Christ of Latter-Day Saints.

As to the constitutional question, we see nothing in the act which, in our judgment, transcends the power of congress over the subject. We have already considered the question of its power to repeal the charter of the corporation. It certainly also had power to direct proceedings to be instituted for the forfeiture and escheat of the real estate of the corporation; and, if a judgment should be rendered in favor of the government in these proceedings, the power to dispose of the proceeds of the lands thus forfeited and escheated, for the use and benefit of common schools in the territory, is beyond dispute. It would probably have power to make such a disposition of the proceeds if the question were merely one of charitable uses, and not of forfeiture. Schools and education were regarded by the congress of the Confederation as the most natural and obvious appliances for the promotion of religion and morality. In the ordinance of 1787, passed for the government of the territory northwest of the Ohio, it is declared: ‘Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.’ Mr. Dane, who is reputed to have drafted the said ordinance, speaking of some of the statutory provisions of the English law regarding charities as inapplicable to America, says: ‘But, in construing these laws, rules have been laid down which are valuable in every state; as that the erection of schools and the relief of the poor are always right, and the law will deny the application of private property only as to uses the nation deems superstitious.’

The Integrity of Survival

Frederick Gedicks

42 DePaul L. Rev. 167 (1992)

Most of you are probably familiar with the nineteenth-century confrontation between Mormons and the federal government, and I will not relate the chapter and verse on that. It lasted nearly fifty years, and was largely about the practice of polygamy or, as the Mormons preferred to call it, “plural marriage.” By 1890, it had become clear that the Mormons would lose this confrontation. The church was bankrupt; its assets were in the hands of a federal receiver; its leadership was in prison or in hiding; and legislation that would have disenfranchised Mormons simply by virtue of their membership in the church had been introduced in Congress and seemed likely to pass. On September 25, 1890, Wilford Woodruff, then the president and prophet of the Mormon church, issued a declaration which Mormons know as the Manifesto. The Manifesto proclaimed that the church would immediately cease all belief in and practice of plural marriage. Woodruff made it clear that he had seen a prophetic vision in which it was revealed to him that the Mormon Church would be utterly destroyed unless it abandoned polygamy: “I have arrived at a point in the History of my life as the President of the Church of Jesus Christ of Latter Day Saints where I am under the necessity of acting for the Temporal Salvation of the Church. The United States Government has taken a Stand & passed Laws to destroy the Latter day Saints upon the Subject of polygamy or Patriarchal order of Marriage. And after Praying to the Lord & feeling inspired by his spirit, I have issued the following Proclamation [i.e., the Manifesto].”

Following issuance of the Manifesto, federal persecution ended in short order.

Mormonism is a religion that is centered to a significant degree on action and works. It is not true, as some conservative Protestants maintain, that Mormons believe they can earn their way to salvation by doing good works. But I think it is a fair observation that the connection between salvation and works in Mormonism is closer than it is in Protestantism. The Book of Mormon states: “We know that it is by grace that we are saved, after all we can do.” So it is not enough for Mormons simply to be faithful to the end. The way we live our religion is by doing everything we possibly can to be faithful to God. In a conflict between faith and survival, our beliefs require that we do all we can to stave off the end. That is exactly what the church did in its confrontation with the federal government over plural marriage. The church engaged lobbyists, retained the best lawyers it could find, repeatedly petitioned Congress and the presidents, politically organized, and sponsored economic boycotts. When these legal means failed, the church employed illegal means to combat the government, going underground and engaging in civil disobedience in an attempt to thwart federal enforcement efforts. If there had been any other course that showed any chance of success, the church certainly would have tried it. When all its efforts failed, the church came face to face with one of the most serious crises of religious conscience: the choice between faithfulness and survival. Just as Wilford Woodruff had made it clear that the survival of the Mormon church depended on its abandoning plural marriage, he had also made it clear that this abandonment was the will of God. He maintained that he had received direct revelation that God no longer required the church to practice polygamy. In my religion, God does not always demand faithfulness over survival. As Woodruff stated in the aftermath of the Manifesto: “The Lord has given us commandments concerning many things, and we have carried them out as far as we could; but when we cannot do it, we are justified. The Lord does not require at our hands things we cannot do.”

In some respects, this is comforting because one knows that at some point, God may release the believer from obligations of faith that require too much suffering and pain and that are, frankly, impossible to accomplish. But this possibility also is a heavy burden of faith, because one can never be sure that she has done enough to be in the moral and religious position to ask God for release from an obligation of faith. At any rate, while there were obvious costs to what Wilford Woodruff did on behalf of the Mormon Church, it does not seem to me that he erred in compromising to preserve the church. Mormons understand their church to exist in the world to do God’s work, and the church clearly cannot do God’s work unless it exists in the world. For Mormons, then, there is religious integrity even in compromise and survival. From the perspective of the nineteenth-century church, there were aspects of Mormonism which were more important than plural marriage, and it became clear to the leaders of the church at that time that it was necessary to choose between them. They chose, with God's help, the religious practices and principles that they felt were more important than plural marriage. The tragedy, of course, is that they were forced to this choice at all. [I believe] that one must do all in her power to avoid the choice between faithfulness and survival, [but] sometimes survival is more important than faithfulness when a choice between the two is unavoidable.

For me, religious freedom is deadly serious. It is serious because my church almost disappeared for lack of this freedom. Indeed, in a certain way, the church did disappear. The Mormon church was transformed by the Manifesto, and the church of today is very different from the church of 1890. Is the church today better off than it would have been had it chosen faithfulness over survival? I do not even know how to think about this question, about whether it was better for the church to have compromised and survived than to have been absolutely faithful and disappeared. I do not know how to think about that at all. I only know that there is integrity in survival, and that faithfulness is not the only religious value. Faithfulness is not the only Christian value and, from my standpoint, it surely is not the only Mormon value. I can only trust that Wilford Woodruff made a choice approved by God. I will close by stating the obvious: The Mormons of the nineteenth century would have preferred, I would prefer, and most religious people would prefer, never to face the choice between faithfulness and survival. One of the ways we can avoid this choice is by working for something called freedom of religion. I am not so naive as to think that working within as well as against the state to carve out a space for the free exercise of religion does not undermine the principles of one's faith. For me, as a Mormon, almost anything is worth avoiding the choice between faithfulness and survival. It is an agonizing choice, a terrible choice, a frightening choice. It is, truly, Hobson’s choice. We must do what we can to save ourselves from it.

Cantwell v. State of Connecticut

310 U.S. 296 (1940)

Mr. Justice ROBERTS delivered the opinion of the Court.

Newton Cantwell and his two sons, Jesse and Russell, members of a group known as Jehovah’s witnesses, and claiming to be ordained ministers, were arrested in New Haven, Connecticut, and each was charged by information in five counts, with statutory and common law offenses, [including the offense of inciting a breach of the peace, of which they were convicted].

The appellants pressed the contention that the statute under which they were prosecuted was offensive to the due process clause of the Fourteenth Amendment because, on its face and as construed and applied, it denied them freedom of speech and prohibited their free exercise of religion. In like manner they made the point that they could not be found guilty on the [charge of inciting a breach of the peace], without violation of the Amendment.

The facts adduced to sustain the convictions follow. On the day of their arrest the appellants were engaged in going singly from house to house on Cassius Street in New Haven. They were individually equipped with a bag containing books and pamphlets on religious subjects, a portable phonograph and a set of records, each of which, when played, introduced, and was a description of, one of the books. Each appellant asked the person who responded to his call for permission to play one of the records. If permission was granted he asked the person to buy the book described and, upon refusal, he solicited such contribution towards the publication of the pamphlets as the listener was willing to make. If a contribution was received a pamphlet was delivered upon condition that it would be read.

Cassius Street is in a thickly populated neighborhood, where about ninety per cent of the residents are Roman Catholics. A phonograph record, describing a book entitled ‘Enemies’, included an attack on the Catholic religion. None of the persons interviewed were members of Jehovah’s witnesses.

The statute under which the appellants were charged provides:

No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect. Such certificate may be revoked at any time. Any person violating any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both.

The appellants claimed that their activities were not within the statute but consisted only of distribution of books, pamphlets, and periodicals.

The facts which were held to support the conviction of Jesse Cantwell on the fifth count (inciting a breach of the peace) were that he stopped two men in the street, asked, and received, permission to play a phonograph record, and played the record ‘Enemies’, which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record and were tempted to strike Cantwell unless he went away. On being told to be on his way he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed.

First. We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the Act in question is not such a regulation. If a certificate is procured, solicitation is permitted without restraint but, in the absence of a certificate, solicitation is altogether prohibited.

The appellants urge that to require them to obtain a certificate as a condition of soliciting support for their views amounts to a prior restraint on the exercise of their religion within the meaning of the Constitution. The State insists that the Act, as construed by the Supreme Court of Connecticut, imposes no previous restraint upon the dissemination of religious views or teaching but merely safeguards against the perpetration of frauds under the cloak of religion. Conceding that this is so, the question remains whether the method adopted by Connecticut to that end transgresses the liberty safeguarded by the Constitution.

The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise.

It will be noted, However, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth.

The line between a discretionary and a ministerial act is not always easy to mark and the statute has not been construed by the State court to impose a mere ministerial duty on the secretary of the welfare council. Upon his decision as to the nature of the cause, the right to solicit depends. Moreover, the availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible. A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action.

Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. Certainly penal laws are available to punish such conduct. Even the exercise of religion may be at some slight inconvenience in order that the state may protect its citizens from injury. Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The state is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

Second. We hold that, in the circ*mstances disclosed, the conviction of Jesse Cantwell on the fifth count must be set aside. Decision as to the lawfulness of the conviction demands the weighing of two conflicting interests. The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. The state of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State’s interest, means to which end would, in the absence of limitation by the federal Constitution, lie wholly within the State’s discretion, has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact.

Conviction on the fifth count was not pursuant to a statute evincing a legislative judgment that street discussion of religious affairs, because of its tendency to provoke disorder, should be regulated, or a judgment that the playing of a phonograph on the streets should in the interest of comfort or privacy be limited or prevented. Violation of an Act exhibiting such a legislative judgment and narrowly drawn to prevent the supposed evil, would pose a question differing from that we must here answer. Such a declaration of the State’s policy would weigh heavily in any challenge of the law as infringing constitutional limitations. Here, however, the judgment is based on a common law concept of the most general and undefined nature.

The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious. Equally obvious is it that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.

Having these considerations in mind, we note that Jesse Cantwell, on April 26, 1938, was upon a public street, where he had a right to be, and where he had a right peacefully to impart his views to others. There is no showing that his deportment was noisy, truculent, overbearing or offensive. He requested of two pedestrians’ permission to play to them a phonograph record. The permission was granted. It is not claimed that he intended to insult or affront the hearers by playing the record. It is plain that he wished only to interest them in his propaganda. The sound of the phonograph is not shown to have disturbed residents of the street, to have drawn a crowd, or to have impeded traffic. Thus far he had invaded no right or interest of the public or of the men accosted.

The record played by Cantwell embodies a general attack on all organized religious systems as instruments of Satan and injurious to man; it then singles out the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of that persuasion, but all others who respect the honestly held religious faith of their fellows. The hearers were in fact highly offended. One of them said he felt like hitting Cantwell and the other that he was tempted to throw Cantwell off the street. The one who testified he felt like hitting Cantwell said, in answer to the question ‘Did you do anything else or have any other reaction?’ ‘No, sir, because he said he would take the victrola and he went.’ The other witness testified that he told Cantwell he had better get off the street before something happened to him and that was the end of the matter as Cantwell picked up his books and walked up the street.

Cantwell’s conduct, in the view of the court below, considered apart from the effect of his communication upon his hearers, did not amount to a breach of the peace. One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

We find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion.

In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish.

Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.

Reversed and remanded.

Chaplinsky v. New Hampshire

315 U.S. 568 (1942)

MR. Justice Murphy delivered the opinion of the Court.

Appellant, a member of the sect known as Jehovah’s Witnesses, was convicted in the municipal court of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the Public Laws of New Hampshire:

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.

The complaint charged that appellant,

with force and arms, in a certain public place in said city of Rochester, to-wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat the words following, addressed to the complainant, that is to say, ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,’ the same being offensive, derisive and annoying words and names.

Upon appeal, there was a trial de novo of appellant before a jury in the Superior Court. He was found guilty, and the judgment of conviction was affirmed by the Supreme Court of the State.

By motions and exceptions, appellant raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States in that it placed an unreasonable restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was vague and indefinite. These contentions were overruled, and the case comes here on appeal.

There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on the streets of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a “racket.” Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless. Some time later, a disturbance occurred and the traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. On the way, they encountered Marshal Bowering, who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky, who then addressed to Bowering the words set forth in the complaint.

Chaplinsky’s version of the affair was slightly different. He testified that, when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply, Bowering cursed him and told him to come along. Appellant admitted that he said the words charged in the complaint, with the exception of the name of the Deity. . . .

Appellant assails the statute as a violation of all three freedoms, speech, press and worship, but only an attack on the basis of free speech is warranted. The spoken, not the written, word is involved. And we cannot conceive that cursing a public officer is the exercise of religion in any sense of the term. But even if the activities of the appellant which preceded the incident could be viewed as religious in character, and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute. We turn, therefore, to an examination of the statute itself.

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circ*mstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [As we noted in Cantwell:]

Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

The state statute here challenged comes to us authoritatively construed by the highest court of New Hampshire. It has two provisions—the first relates to words or names addressed to another in a public place; the second refers to noises and exclamations. The court said: “The two provisions are distinct. One may stand separately from the other. Assuming, without holding, that the second were unconstitutional, the first could stand if constitutional.” We accept that construction of severability and limit our consideration to the first provision of the statute.

On the authority of its earlier decisions, the state court declared that the statute’s purpose was to preserve the public peace, no words being “forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.” It was further said:

The word ‘offensive’ is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which, by general consent, are ‘fighting words’ when said without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker—including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.

We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. This conclusion necessarily disposes of appellant’s contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law.

Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or falsity of the utterances is open to no Constitutional objection. Whether the facts sought to be proved by such evidence constitute a defense to the charge, or may be shown in mitigation, are questions for the state court to determine. Our function is fulfilled by a determination that the challenged statute, on its face and as applied, doe not contravene the Fourteenth Amendment.


West Virginia State Board of Education v. Barnette

319 U.S. 624 (1943)

Mr. Justice JACKSON delivered the opinion of the Court.

The West Virginia legislature amended its statutes to require all schools therein to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State ‘for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government.’ Appellant Board of Education was directed, with advice of the State Superintendent of Schools, to ‘prescribe the courses of study covering these subjects’ for public schools. The Act made it the duty of private, parochial and denominational schools to prescribe courses of study ‘similar to those required for the public schools.’

The Board of Education on January 9, 1942, adopted a resolution ordering that the salute to the flag become ‘a regular part of the program of activities in the public schools,’ that all teachers and pupils ‘shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly.’

The resolution originally required the ‘commonly accepted salute to the Flag’ which it defined. Objections to the salute as ‘being too much like Hitler’s’ were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the Federation of Women’s Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah’s Witnesses. What is now required is the ‘stiff-arm’ salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: ‘I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.’

Failure to conform is ‘insubordination’ dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile the expelled child is ‘unlawfully absent’ and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days.

Appellees, citizens of the United States and of West Virginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah’s Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: ‘Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.’ They consider that the flag is an ‘image’ within this command. For this reason they refuse to salute it.

Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted and are threatened with prosecutions for causing delinquency.

The Board of Education moved to dismiss the complaint setting forth these facts and alleging that the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the ‘due process’ and ‘equal protection’ clauses of the Fourteenth Amendment to the Federal Constitution.

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.

Here we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan.

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.

Over a decade ago Chief Justice Hughes led this Court in holding that the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by the free speech guaranties of the Constitution. Stromberg v. California. Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.

It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.

Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence validity of the asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.

Nor does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. It is not necessary to inquire whether non-conformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.

The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution.

It was said that the flag-salute controversy confronted the Court with ‘the problem which Lincoln cast in memorable dilemma: ‘Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?’ and that the answer must be in favor of strength. Minersville School District v. Gobitis.

We think these issues may be examined free of pressure or restraint growing out of such considerations.

It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies.

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.

The subject now before us exemplifies this principle. Free public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction. If it is to impose any ideological discipline, however, each party or denomination must seek to control, or failing that, to weaken the influence of the educational system. Observance of the limitations of the Constitution will not weaken government in the field appropriate for its exercise.

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a ‘rational basis’ for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally govern this case.

Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.

The Gobitis opinion reasons that ‘National unity is the basis of national security,’ that the authorities have ‘the right to select appropriate means for its attainment,’ and hence reaches the conclusion that such compulsory measures toward ‘national unity’ are constitutional.Upon the verity of this assumption depends our answer in this case.

National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circ*mstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

The decision of this Court in Minersville School District v. Gobitis [is] overruled, and the judgment enjoining enforcement of the West Virginia Regulation is affirmed.

Mr. Justice FRANKFURTER, dissenting.

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing, as they do, the thought and action of a lifetime. But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution, and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one’s own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one’s duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could, in reason, have enacted such a law. In the light of all the circ*mstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the “liberty” secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen. . . .

The reason why, from the beginning, even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized, for the greatest caution in its use.

The precise scope of the question before us defines the limits of the constitutional power that is in issue. The State of West Virginia requires all pupils to share in the salute to the flag as part of school training in citizenship. The present action is one to enjoin the enforcement of this requirement by those in school attendance. We have not before us any attempt by the State to punish disobedient children or visit penal consequences on their parents. All that is in question is the right of the State to compel participation in this exercise by those who choose to attend the public schools.

We are not reviewing merely the action of a local school board. The flag salute requirement in this case comes before us with the full authority of the State of West Virginia. We are, in fact, passing judgment on “the power of the State as a whole.” Practically, we are passing upon the political power of each of the forty-eight states. Moreover, since the First Amendment has been read into the Fourteenth, our problem is precisely the same as it would be if we had before us an Act of Congress for the District of Columbia. To suggest that we are here concerned with the heedless action of some village tyrants is to distort the augustness of the constitutional issue and the reach of the consequences of our decision.

Under our constitutional system, the legislature is charged solely with civil concerns of society. If the avowed or intrinsic legislative purpose is either to promote or to discourage some religious community or creed, it is clearly within the constitutional restrictions imposed on legislatures, and cannot stand. But it by no means follows that legislative power is wanting whenever a general nondiscriminatory civil regulation, in fact, touches conscientious scruples or religious beliefs of an individual or a group. Regard for such scruples or beliefs undoubtedly presents one of the most reasonable claims for the exertion of legislative accommodation. It is, of course, beyond our power to rewrite the State's requirement by providing exemptions for those who do not wish to participate in the flag salute or by making some other accommodations to meet their scruples. That wisdom might suggest the making of such accommodations, and that school administration would not find it too difficult to make them, and yet maintain the ceremony for those not refusing to conform, is outside our province to suggest. Tact, respect, and generosity toward variant views will always commend themselves to those charged with the duties of legislation so as to achieve a maximum of good will and to require a minimum of unwilling submission to a general law. But the real question is, who is to make such accommodations, the courts or the legislature?

This is no dry, technical matter. It cuts deep into one’s conception of the democratic process—it concerns no less the practical differences between the means for making these accommodations that are open to courts and to legislatures. A court can only strike down. It can only say “This or that law is void.” It cannot modify or qualify, it cannot make exceptions to a general requirement.And it strikes down not merely for a day. At least the finding of unconstitutionality ought not to have ephemeral significance unless the Constitution is to be reduced to the fugitive importance of mere legislation. When we are dealing with the Constitution of the United States, and, more particularly, with the great safeguards of the Bill of Rights, we are dealing with principles of liberty and justice “so rooted in the traditions and conscience of our people as to be ranked as fundamental”—something without which “a fair and enlightened system of justice would be impossible.” If the function of this Court is to be essentially no different from that of a legislature, if the considerations governing constitutional construction are to be substantially those that underlie legislation, then indeed judges should not have life tenure, and they should be made directly responsible to the electorate. There have been many, but unsuccessful, proposals in the last sixty years to amend the Constitution to that end. . . .

The essence of the religious freedom guaranteed by our Constitution is therefore this: no religion shall either receive the state's support or incur its hostility. Religion is outside the sphere of political government. This does not mean that all matters on which religious organizations or beliefs may pronounce are outside the sphere of government. Were this so, instead of the separation of church and state, there would be the subordination of the state on any matter deemed within the sovereignty of the religious conscience. Much that is the concern of temporal authority affects the spiritual interests of men. But it is not enough to strike down a nondiscriminatory law that it may hurt or offend some dissident view. It would be too easy to cite numerous prohibitions and injunctions to which laws run counter if the variant interpretations of the Bible were made the tests of obedience to law. The validity of secular laws cannot be measured by their conformity to religious doctrines. It is only in a theocratic state that ecclesiastical doctrines measure legal right or wrong.

An act compelling profession of allegiance to a religion, no matter how subtly or tenuously promoted, is bad. But an act promoting good citizenship and national allegiance is within the domain of governmental authority, and is therefore to be judged by the same considerations of power and of constitutionality as those involved in the man claims of immunity from civil obedience because of religious scruples.

That claims are pressed on behalf of sincere religious convictions does not, of itself, establish their constitutional validity. Nor does waving the banner of religious freedom relieve us from examining into the power we are asked to deny the states. Otherwise, the doctrine of separation of church and state, so cardinal in the history of this nation and for the liberty of our people, would mean not the disestablishment of a state church, but the establishment of all churches, and of all religious groups.

The subjection of dissidents to the general requirement of saluting the flag, as a measure conducive to the training of children in good citizenship, is very far from being the first instance of exacting obedience to general laws that have offended deep religious scruples. Compulsory vaccination, food inspection regulations, the obligation to bear arms, testimonial duties, compulsory medical treatment—these are but illustrations of conduct that has often been compelled in the enforcement of legislation of general applicability even though the religious consciences of particular individuals rebelled at the exaction.

Law is concerned with external behavior, and not with the inner life of man. It rests in large measure upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws. The state is not shut out from a domain because the individual conscience may deny the state's claim. The individual conscience may profess what faith it chooses. It may affirm and promote that faith—in the language of the Constitution, it may “exercise” it freely—but it cannot thereby restrict community action through political organs in matters of community concern, so long as the action is not asserted in a discriminatory way, either openly or by stealth. One may have the right to practice one’s religion and at the same time owe the duty of formal obedience to laws that run counter to one's belief. Compelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue, and with ample opportunity for seeking its change or abrogation. . . .

The flag salute exercise has no kinship whatever to the oath tests so odious in history. For the oath test was one of the instruments for suppressing heretical beliefs. Saluting the flag suppresses no belief, nor curbs it. Children and their parents may believe what they please, avow their belief and practice it. It is not even remotely suggested that the requirement for saluting the flag involves the slightest restriction against the fullest opportunity on the part both of the children and of their parents to disavow, as publicly as they choose to do so, the meaning that others attach to the gesture of salute. All channels of affirmative free expression are open to both children and parents. Had we before us any act of the state putting the slightest curbs upon such free expression, I should not lag behind any member of this Court in striking down such an invasion of the right to freedom of thought and freedom of speech protected by the Constitution. . . .

Prince v. Massachusetts

321 U.S. 158 (1944)

Mr. Justice RUTLEDGE delivered the opinion of the Court.

The case brings for review another episode in the conflict between Jehovah’s Witnesses and state authority. This time Sarah Prince appeals from convictions for violating Massachusetts’ child labor laws, by acts said to be a rightful exercise of her religious convictions.

When the offenses were committed she was the aunt and custodian of Betty M. Simmons, a girl nine years of age. Originally there were three separate complaints. They were, shortly, for (1) refusal to disclose Betty’s identity and age to a public officer whose duty was to enforce the statutes; (2) furnishing her with magazines, knowing she was to sell them unlawfully, that is, on the street; and (3) as Betty's custodian, permitting her to work contrary to law. The complaints were made, respectively, pursuant to Sections 79, 80 and 81 of Chapter 149, Gen.Laws of Mass. The Supreme Judicial Court reversed the conviction under the first complaint on state grounds; but sustained the judgments founded on the other two. They present the only questions for our decision. These are whether Sections 80 and 81, as applied, contravene the Fourteenth Amendment by denying or abridging appellant's freedom of religion and by denying to her the equal protection of the laws.

Sections 80 and 81 form parts of Massachusetts’ comprehensive child labor law. They provide methods for enforcing the prohibitions of Section 69, which is as follows:

No boy under twelve and no girl under eighteen shall sell, expose or offer for sale any newspapers, magazines, periodicals or any other articles of merchandise of any description, or exercise the trade of bootblack or scavenger, or any other trade, in any street or public place.

Section 80 and 81, so far as pertinent, read:

Whoever furnishes or sells to any minor any article of any description with the knowledge that the minor intends to sell such article in violation of any provision of sections sixty-nine to seventy-three, inclusive, or after having received written notice to this effect from any officer charged with the enforcement thereof, or knowingly procures or encourages any minor to violate any provisions of said sections, shall be punished by a fine of not less than ten nor more than two hundred dollars or by imprisonment for not more than two months, or both.

Any parent, guardian or custodian having a minor under his control who compels or permits such minor to work in violation of any provision of sections sixty to seventy-four, inclusive, shall for a first offence be punished by a fine of not less than two nor more than ten dollars or by imprisonment for not more than five days, or both.

The story told by the evidence has become familiar. It hardly needs repeating, except to give setting to the variations introduced through the part played by a child of tender years. Mrs. Prince, living in Brockton, is the mother of two young sons. She also has legal custody of Betty Simmons who lives with them. The children too are Jehovah’s Witnesses and both Mrs. Prince and Betty testified they were ordained ministers. The former was accustomed to go each week on the streets of Brockton to distribute ‘Watchtower’ and ‘Consolation,’ according to the usual plan. She had permitted the children to engage in this activity previously, and had been warned against doing so by the school attendance officer, Mr. Perkins. But, until December 18, 1941, she generally did not take them with her at night.

That evening, as Mrs. Prince was preparing to leave her home, the children asked to go. She at first refused. Childlike, they resorted to tears and, motherlike, she yielded. Arriving downtown, Mrs. Prince permitted the children ‘to engage in the preaching work with her upon the sidewalks.’ That is, with specific reference to Betty, she and Mrs. Prince took positions about twenty feet apart near a street intersection. Betty held up in her hand, for passersby to see, copies of ‘Watch Tower’ and ‘Consolation.’ From her shoulder hung the usual canvas magazine bag, on which was printed ‘Watchtower and Consolation 5¢ per copy.’ No one accepted a copy from Betty that evening and she received no money. Nor did her aunt. But on other occasions, Betty had received funds and given out copies.

Mrs. Prince and Betty remained until 8:45 p.m. A few minutes before this Mr. Perkins approached Mrs. Prince. A discussion ensued. He inquired and she refused to give Betty’s name. However, she stated the child attended the Shaw School. Mr. Perkins referred to his previous warnings and said he would allow five minutes for them to get off the street. Mrs. Prince admitted she supplied Betty with the magazines and said, ‘Neither you nor anybody else can stop me. This child is exercising her God-given right and her constitutional right to preach the gospel, and no creature has a right to interfere with God’s commands.’ However, Mrs. Prince and Betty departed. She remarked as she went, ‘I’m not going through this any more. We’ve been through it time and time again. I’m going home and put the little girl to bed.’ It may be added that testimony, by Betty, her aunt and others, was offered at the trials, and was excluded, to show that Betty believed it was her religious duty to perform this work and failure would bring condemnation ‘to everlasting destruction at Armageddon.’

As the case reaches us, the questions are no longer open whether what the child did was a ‘sale’ or an ‘offer to sell’ within Section 69 or was ‘work’ within Section 81. The state court's decision has foreclosed them adversely to appellant as a matter of state law. The only question remaining therefore is whether, as construed and applied, the statute is valid. Upon this the court said: ‘We think that freedom of the press and of religion is subject to incidental regulation to the slight degree involved in the prohibition of the selling of religious literature in streets and public places by boys under twelve and girls under eighteen and in the further statutory provisions herein considered, which have been adopted as a means of enforcing that prohibition.’

Appellant does not stand on freedom of the press. Regarding it as secular, she concedes it may be restricted as Massachusetts has done. Hence, she rests squarely on freedom of religion under the First Amendment, applied by the Fourteenth to the states. She buttresses this foundation, however, with a claim of parental right as secured by the due process clause of the latter Amendment. These guaranties, she thinks, guard alike herself and the child in what they have done. Thus, two claimed liberties are at stake. One is the parent's, to bring up the child in the way he should go, which for appellant means to teach him the tenets and the practices of their faith. The other freedom is the child's, to observe these; and among them is ‘to preach the gospel by public distribution’ of ‘Watchtower’ and ‘Consolation,’ in conformity with the scripture: ‘A little child shall lead them.’

If by this position appellant seeks for freedom of conscience a broader protection than for freedom of the mind, it may be doubted that any of the great liberties insured by the First Article can be given higher place than the others. All have preferred position in our basic scheme. All are interwoven there together. Differences there are, in them and in the modes appropriate for their exercise. But they have unity in the charter's prime place because they have unity in their human sources and functionings. Heart and mind are not identical. Intuitive faith and reasoned judgment are not the same. Spirit is not always thought. But in the everyday business of living, secular or otherwise, these variant aspects of personality find inseparable expression in a thousand ways. They cannot be altogether parted in law more than in life.

To make accommodation between these freedoms and an exercise of state authority always is delicate. It hardly could be more so than in such a clash as this case presents. On one side is the obviously earnest claim for freedom of conscience and religious practice. With it is allied the parent’s claim to authority in her own household and in the rearing of her children. The parent's conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters. Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children, and the state’s assertion of authority to that end, made here in a manner conceded valid if only secular things were involved. The last is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens. Between contrary pulls of such weight, the safest and most objective recourse is to the lines already marked out, not precisely but for guides, in narrowing the no man's land where this battle has gone on.

The rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it, have had recognition here, most recently in West Virginia State Board of Education v. Barnette. Previously in Pierce v. Society of Sisters, this Court had sustained the parent's authority to provide religious with secular schooling, and the child’s right to receive it, as against the state’s requirement of attendance at public schools. And in Meyer v. Nebraska, children's rights to receive teaching in languages other than the nation's common tongue were guarded against the state's encroachment. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

But [as we noted in Reynolds v. United States and Davis v. Beason], the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction.

But it is said the state cannot do so here. This, first, because when state action impinges upon a claimed religious freedom, it must fall unless shown to be necessary for or conducive to the child’s protection against some clear and present danger; and, it is added, there was no such showing here. The child’s presence on the street, with her guardian, distributing or offering to distribute the magazines, it is urged, was in no way harmful to her, nor in any event more so than the presence of many other children at the same time and place, engaged in shopping and other activities not prohibited. Accordingly, in view of the preferred position the freedoms of the First Article occupy, the statute in its present application must fall. It cannot be sustained by any presumption of validity. And, finally, it is said, the statute is, as to children, an absolute prohibition, not merely a reasonable regulation, of the denounced activity.

Concededly a statute or ordinance identical in terms with Section 69, except that it is applicable to adults or all persons generally, would be invalid. But the mere fact a state could not wholly prohibit this form of adult activity, whether characterized locally as a ‘sale’ or otherwise, does not mean it cannot do so for children. Such a conclusion granted would mean that a state could impose no greater limitation upon child labor than upon adult labor. Or, if an adult were free to enter dance halls, saloons, and disreputable places generally, in order to discharge his conceived religious duty to admonish or dissuade persons from frequenting such places, so would be a child with similar convictions and objectives, if not alone then in the parent's company, against the state’s command.

The state’s authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power, whether against the parents claim to control of the child or one that religious scruples dictate contrary action.

It is true children have rights, in common with older people, in the primary use of highways. But even in such use streets afford dangers for them not affecting adults. And in other uses, whether in work or in other things, this difference may be magnified. This is so not only when children are unaccompanied but certainly to some extent when they are with their parents. What may be wholly permissible for adults therefore may not be so for children, either with or without their parents’ presence.

Street preaching, whether oral or by handing out literature, is not the primary use of the highway, even for adults. While for them it cannot be wholly prohibited, it can be regulated within reasonable limits in accommodation to the primary and other incidental uses. But, for obvious reasons, notwithstanding appellant's contrary view, the validity of such a prohibition applied to children not accompanied by an older person hardly would seem open to question. The case reduces itself therefore to the question whether the presence of the child's guardian puts a limit to the state’s power. That fact may lessen the likelihood that some evils the legislation seeks to avert will occur. But it cannot forestall all of them. The zealous though lawful exercise of the right to engage in propagandizing the community, whether in religious, political or other matters, may and at times does create situations difficult enough for adults to cope with and wholly inappropriate for children, especially of tender years, to face. Other harmful possibilities could be stated, of emotional excitement and psychological or physical injury. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circ*mstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Massachusetts has determined that an absolute prohibition, though one limited to streets and public places and to the incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to attain them is broad enough to reach these peripheral instances in which the parent's supervision may reduce but cannot eliminate entirely the ill effects of the prohibited conduct. We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.

In so ruling we dispose also of appellant's argument founded upon denial of equal protection. It falls with that based on denial of religious freedom, since in this instance the one is but another phrasing of the other. Shortly, the contention is that the street, for Jehovah’s Witnesses and their children, is their church, since their conviction makes it so; and to deny them access to it for religious purposes as was done here has the same effect as excluding altar boys, youthful choristers, and other children from the edifices in which they practice their religious beliefs and worship. The argument hardly needs more than statement, after what has been said, to refute it. However Jehovah’s Witnesses may conceive them, the public highways have not become their religious property merely by their assertion. And there is no denial of equal protection in excluding their children from doing there what no other children may do.

Our ruling does not extend beyond the facts the case presents. We neither lay the foundation ‘for any (that is, every) state intervention in the indoctrination and participation of children in religion’ which may be done ‘in the name of their health and welfare’ nor give warrant for ‘every limitation on their religious training and activities.’ The religious training and indoctrination of children may be accomplished in many ways, some of which, as we have noted, have received constitutional protection through decisions of this Court. These and all others except the public proclaiming of religion on the streets, if this may be taken as either training or indoctrination of the proclaimer, remain unaffected by the decision.

The judgment is affirmed.

Mr. Justice JACKSON, dissenting.

The novel feature of this decision is this: the Court holds that a state may apply child labor laws to restrict or prohibit an activity of which, as recently as last term, it held: ‘This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion.’ ‘The mere fact that the religious literature is ‘sold’ by itinerant preachers rather than ‘donated’ does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project. [As we noted in Murdock v. Pennsylvania], the constitutional rights of those spreading their religious beliefs through the spoken and printed word are not to be gauged by standards governing retailers or wholesalers of books.

It is difficult for me to believe that going upon the streets to accost the public is the same thing for application of public law as withdrawing to a private structure for religious worship. But if worship in the churches and the activity of Jehovah’s Witnesses on the streets ‘occupy the same high estate’ and have the ‘same claim to protection’ it would seem that child labor laws may be applied to both if to either. If the Murdock doctrine stands along with today’s decision, a foundation is laid for any state intervention in the indoctrination and participation of children in religion, provided it is done in the name of their health or welfare.

This case brings to the surface the real basis of disagreement among members of this Court in previous Jehovah’s Witness cases. Our basic difference seems to be as to the method of establishing limitations which of necessity bound religious freedom.

My own view may be shortly put: I think the limits begin to operate whenever activities begin to affect or collide with liberties of others or of the public. Religious activities which concern only members of the faith are and ought to be free—as nearly absolutely free as anything can be. But beyond these, many religious denominations or sects engage in collateral and secular activities intended to obtain means from unbelievers to sustain the worshippers and their leaders. They raise money, not merely by passing the plate to those who voluntarily attend services or by contributions by their own people, but by solicitations and drives addressed to the public by holding public dinners and entertainments, by various kinds of sales and Bingo games and lotteries. All such money-raising activities on a public scale are, I think, Caesar’s affairs and may be regulated by the state so long as it does not discriminate against one because he is doing them for a religious purpose, and the regulation is not arbitrary and capricious, in violation of other provisions of the Constitution.

The Court in the Murdock case rejected this principle of separating immune religious activities from secular ones in declaring the disabilities which the Constitution imposed on local authorities. Instead, the Court now draws a line based on age that cuts across both true exercise of religion and auxiliary secular activities. I think this is not a correct principle for defining the activities immune from regulation on grounds of religion, and Murdock overrules the grounds on which I think affirmance should rest. I have no alternative but to dissent from the grounds of affirmance of a judgment which I think was rightly decided, and upon right grounds, by the Supreme Judicial Court of Massachusetts.

Mr. Justice MURPHY, dissenting.

This attempt by the state of Massachusetts to prohibit a child from exercising her constitutional right to practice her religion on the public streets cannot, in my opinion, be sustained.

The record makes clear the basic fact that Betty Simmons, the nine-year old child in question, was engaged in a genuine religious, rather than commercial, activity. She was a member of Jehovah’s Witnesses and had been taught the tenets of that sect by her guardian, the appellant. Such tenets included the duty of publicly distributing religious tracts on the street and from door to door. Pursuant to this religious duty and in the company of the appellant, Betty Simmons on the night of December 18, 1941, was standing on a public street corner and offering to distribute Jehovah’s Witness literature to passersby. There was no expectation of pecuniary profit to herself or to appellant. It is undisputed, furthermore, that she did this of her own desire and with appellant's consent. She testified that she was motivated by her love of the Lord and that He commanded her to distribute this literature; this was, she declared, her way of worshipping God. She was occupied, in other words, in ‘an age-old form of missionary evangelism’ with a purpose ‘as evangelical as the revival meeting.’

Religious training and activity, whether performed by adult or child, are protected by the Fourteenth Amendment against interference by state action, except insofar as they violate reasonable regulations adopted for the protection of the public health, morals and welfare. Our problem here is whether a state, under the guise of enforcing its child labor laws, can lawfully prohibit girls under the age of eighteen and boys under the age of twelve from practicing their religious faith insofar as it involves the distribution or sale of religious tracts on the public streets. No question of freedom of speech or freedom of press is present and we are not called upon to determine the permissible restraints on those rights. Nor are any truancy or curfew restrictions in issue. The statutes in question prohibit all children within the specified age limits from selling or offering to sell ‘any newspapers, magazines, periodicals or any other articles of merchandise of any description in any street or public place.’ Criminal sanctions are imposed on the parents and guardians who compel or permit minors in their control to engage in the prohibited transactions. The state court has construed these statutes to cover the activities here involved, thereby imposing an indirect restraint through the parents and guardians on the free exercise by minors of their religious beliefs. This indirect restraint is no less effective than a direct one. A square conflict between the constitutional guarantee of religious freedom and the state’s legitimate interest in protecting the welfare of its children is thus presented.

As the opinion of the Court demonstrates, the power of the state lawfully to control the religious and other activities of children is greater than its power over similar activities of adults. But that fact is no more decisive of the issue posed by this case than is the obvious fact that the family itself is subject to reasonable regulation in the public interest. We are concerned solely with the reasonableness of this particular prohibition of religious activity by children.

In dealing with the validity of statutes which directly or indirectly infringe religious freedom and the right of parents to encourage their children in the practice of a religious belief, we are not aided by any strong presumption of the constitutionality of such legislation. On the contrary, the human freedoms enumerated in the First Amendment and carried over into the Fourteenth Amendment are to be presumed to be invulnerable and any attempt to sweep away those freedoms is prima facie invalid. It follows that any restriction or prohibition must be justified by those who deny that the freedoms have been unlawfully invaded. The burden was therefore on the state of Massachusetts to prove the reasonableness and necessity of prohibiting children from engaging in religious activity of the type involved in this case.

The burden in this instance, however, is not met by vague references to the reasonableness underlying child labor legislation in general. The great interest of the state in shielding minors from the evil vicissitudes of early life does not warrant every limitation on their religious training and activities. The reasonableness that justifies the prohibition of the ordinary distribution of literature in the public streets by children is not necessarily the reasonableness that justifies such a drastic restriction when the distribution is part of their religious faith. If the right of a child to practice its religion in that manner is to be forbidden by constitutional means, there must be convincing proof that such a practice constitutes a grave and immediate danger to the state or to the health, morals or welfare of the child. The vital freedom of religion, which is ‘of the very essence of a scheme of ordered liberty,’ cannot be erased by slender references to the state's power to restrict the more secular activities of children.

The state, in my opinion, has completely failed to sustain its burden of proving the existence of any grave or immediate danger to any interest which it may lawfully protect. There is no proof that Betty Simmons' mode of worship constituted a serious menace to the public. It was carried on in an orderly, lawful manner at a public street corner. And ‘one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature as well as by the spoken word.’ The sidewalk, no less than the cathedral or the evangelist's tent, is a proper place, under the Constitution, for the orderly worship of God. Such use of the streets is as necessary to the Jehovah’s Witnesses, the Salvation Army and others who practice religion without benefit of conventional shelters as is the use of the streets for purposes of passage.

It is claimed, however, that such activity was likely to affect adversely the health, morals and welfare of the child. Reference is made in the majority opinion to ‘the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street.’ To the extent that they flow from participation in ordinary commercial activities, these harms are irrelevant to this case. And the bare possibility that such harms might emanate from distribution of religious literature is not, standing alone, sufficient justification for restricting freedom of conscience and religion. Nor can parents or guardians be subjected to criminal liability because of vague possibilities that their religious teachings might cause injury to the child. The evils must be grave, immediate, substantial. Yet there is not the slightest indication in this record, or in sources subject to judicial notice, that children engaged in distributing literature pursuant to their religious beliefs have been or are likely to be subject to any of the harmful ‘diverse influences of the street.’ Indeed, if probabilities are to be indulged in, the likelihood is that children engaged in serious religious endeavor are immune from such influences. Gambling, truancy, irregular eating and sleeping habits, and the more serious vices are not consistent with the high moral character ordinarily displayed by children fulfilling religious obligations. Moreover, Jehovah’s Witness children invariably make their distributions in groups subject at all times to adult or parental control, as was done in this case. The dangers are thus exceedingly remote, to say the least. And the fact that the zealous exercise of the right to propagandize the community may result in violent or disorderly situations difficult for children to face is no excuse for prohibiting the exercise of that right.

No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against those who dare to express or practice unorthodox religious beliefs. And the Jehovah’s Witnesses are living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure. Theirs is a militant and unpopular faith, pursued with a fanatical zeal. They have suffered brutal beatings; their property has been destroyed; they have been harassed at every turn by the resurrection and enforcement of little used ordinances and statutes. To them, along with other present-day religious minorities, befalls the burden of testing our devotion to the ideals and constitutional guarantees of religious freedom. We should therefore hesitate before approving the application of a statute that might be used as another instrument of oppression. Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger.

Sherbert v. Verner

374 U.S. 398 (1963)

Mr. Justice BRENNAN delivered the opinion of the Court.

Appellant, a member of the Seventh-day Adventist Church was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. When she was unable to obtain other employment because from conscientious scruples she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act. That law provides that, to be eligible for benefits, a claimant must be ‘able to work and is available for work’; and, further, that a claimant is ineligible for benefits ‘(i)f he has failed, without good cause to accept available suitable work when offered him by the employment office or the employer.’ The appellee Employment Security Commission, in administrative proceedings under the statute, found that appellant’s restriction upon her availability for Saturday work brought her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept ‘suitable work when offered by the employment office or the employer.’ The Commission’s finding was sustained by the Court of Common Pleas for Spartanburg County. That court's judgment was in turn affirmed by the South Carolina Supreme Court, which rejected appellant's contention that, as applied to her, the disqualifying provisions of the South Carolina statute abridged her right to the free exercise of her religion secured under the Free Exercise Clause of the First Amendment through the Fourteenth Amendment. The State Supreme Court held specifically that appellant's ineligibility infringed no constitutional liberties because such a construction of the statute ‘places no restriction upon the appellant's freedom of religion nor does it in any way prevent her in the exercise of her right and freedom to observe her religious beliefs in accordance with the dictates of her conscience.’ We noted probable jurisdiction of appellant's appeal. We reverse the judgment of the South Carolina Supreme Court and remand for further proceedings not inconsistent with this opinion.


The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut. Government may neither compel affirmation of a repugnant belief; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania; Follett v. McCormick. On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for ‘even when the action is in accord with one’s religious convictions, (it) is not totally free from legislative restrictions.’ Braunfeld v. Brown. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States.

Plainly enough, appellant’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a ‘compelling state interest in the regulation of a subject within the State's constitutional power to regulate.’


We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant's religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For ‘(i)f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.’ Here not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.

Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's ‘right’ but merely a ‘privilege.’ It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. For example, in Flemming v. Nestor, the Court recognized with respect to Federal Social Security benefits that ‘(t)he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause.’ In Speiser v. Randall, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression and thereby threatened to ‘produce a result which the State could not command directly.’ ‘To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.’ Likewise, to condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.

Significantly South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian’s religious liberty. When in times of ‘national emergency’ the textile plants are authorized by the State Commissioner of Labor to operate on Sunday, ‘no employee shall be required to work on Sunday who is conscientiously opposed to Sunday work; and if any employee should refuse to work on Sunday on account of conscientious objections he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner.’ S.C.Code, s 64—4. No question of the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina’s general statutory scheme necessarily effects.


We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant's First Amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, ‘(o)nly the gravest abuses, endangering paramount interest, give occasion for permissible limitation.’ No such abuse or danger has been advanced in the present case. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of the state court. Nor, if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance. Even if consideration of such evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs—a question as to which we intimate no view since it is not before us—it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.

In these respects, then, the state interest asserted in the present case is wholly dissimilar to the interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown. The Court recognized that the Sunday closing law which that decision sustained undoubtedly served ‘to make the practice of (the Orthodox Jewish merchants’) religious beliefs more expensive.’ But the statute was nevertheless saved by a countervailing factor which finds no equivalent in the instant case—a strong state interest in providing one uniform day of rest for all workers. That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. In the present case no such justifications underlie the determination of the state court that appellant’s religion makes her ineligible to receive benefits.


In holding as we do, plainly we are not fostering the ‘establishment’ of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. Nor does the recognition of the appellant's right to unemployment benefits under the state statute serve to abridge any other person's religious liberties. Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee's religious convictions serve to make him a nonproductive member of society. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may ‘exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.’

In view of the result we have reached under the First and Fourteenth Amendments' guarantee of free exercise of religion, we have no occasion to consider appellant's claim that the denial of benefits also deprived her of the equal protection of the laws in violation of the Fourteenth Amendment.

The judgment of the South Carolina Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Reversed and remanded.

Mr. Justice DOUGLAS, concurring.

The case we have for decision seems to me to be of small dimensions, though profoundly important. The question is whether the South Carolina law which denies unemployment compensation to a Seventh-day Adventist, who, because of her religion, has declined to work on her Sabbath, is a law ‘prohibiting the free exercise’ of religion as those words are used in the First Amendment. It seems obvious to me that this law does run afoul of that clause.

Religious scruples of Moslems require them to attend a mosque on Friday and to pray five times daily. Religious scruples of a Sikh require him to carry a regular or a symbolic sword. Religious scruples of a Jehovah's Witness teach him to be a colporteur, going from door to door, from town to town, distributing his religious pamphlets. Religious scruples of a Quaker compel him to refrain from swearing and to affirm instead. Religious scruples of a Buddhist may require him to refrain from partaking of any flesh, even of fish.

The examples could be multiplied, including those of the Seventh-day Adventist whose Sabbath is Saturday and who is advised not to eat some meats.

These suffice, however, to show that many people hold beliefs alien to the majority of our society—beliefs that are protected by the First Amendment but which could easily be trod upon under the guise of ‘police’ or ‘health’ regulations reflecting the majority’s views.

Some have thought that a majority of a community can, through state action, compel a minority to observe their particular religious scruples so long as the majority’s rule can be said to perform some valid secular function. That was the essence of the Court's decision in the Sunday Blue Law Cases, a ruling from which I then dissented and still dissent.

That ruling of the Court travels part of the distance that South Carolina asks us to go now. She asks us to hold that when it comes to a day of rest a Sabbatarian must conform with the scruples of the majority in order to obtain unemployment benefits.

The result turns not on the degree of injury, which may indeed be nonexistent by ordinary standards. The harm is the interference with the individual’s scruples or conscience—an important area of privacy which the First Amendment fences off from government. The interference here is as plain as it is in Soviet Russia, where a churchgoer is given a second-class citizenship, resulting in harm though perhaps not in measurable damages.

This case is resolvable not in terms of what an individual can demand of government, but solely in terms of what government may not do to an individual in violation of his religious scruples. The fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.

Those considerations, however, are not relevant here. If appellant is otherwise qualified for unemployment benefits, payments will be made to her not as a Seventh-day Adventist, but as an unemployed worker. Conceivably these payments will indirectly benefit her church, but no more so than does the salary of any public employee. Thus, this case does not involve the problems of direct or indirect state assistance to a religious organization—matters relevant to the Establishment Clause, not in issue here.

Mr. Justice STEWART, concurring in the result.

Although fully agreeing with the result which the Court reaches in this case, I cannot join the Court’s opinion. This case presents a double-barreled dilemma, which in all candor I think the Court’s opinion has not succeeded in papering over. The dilemma ought to be resolved.


[This Court’s prior decisions mean] that there are many situations where legitimate claims under the Free Exercise Clause will run into head-on collision with the Court’s insensitive and sterile construction of the Establishment Clause. The controversy now before us is clearly such a case.

Because the appellant refuses to accept available jobs which would require her to work on Saturdays, South Carolina has declined to pay unemployment compensation benefits to her. Her refusal to work on Saturdays is based on the tenets of her religious faith. The Court says that South Carolina cannot under these circ*mstances declare her to be not ‘available for work’ within the meaning of its statute because to do so would violate her constitutional right to the free exercise of her religion.

Yet what this Court has said about the Establishment Clause must inevitably lead to a diametrically opposite result. If the appellant’s refusal to work on Saturdays were based on indolence, or on a compulsive desire to watch the Saturday television programs, no one would say that South Carolina could not hold that she was not ‘available for work’ within the meaning of its statute. That being so, the Establishment Clause as construed by this Court not only permits but affirmatively requires South Carolina equally to deny the appellant's claim for unemployment compensation when her refusal to work on Saturdays is based upon her religious creed. . . .

To require South Carolina to so administer its laws as to pay public money to the appellant under the circ*mstances of this case is thus clearly to require the State to violate the Establishment Clause as construed by this Court. This poses no problem for me, because I think the Court’s mechanistic concept of the Establishment Clause is historically unsound and constitutionally wrong. I think the process of constitutional decision in the area of the relationships between government and religion demands considerably more than the invocation of broad-brushed rhetoric of the kind I have quoted. And I think that the guarantee of religious liberty embodied in the Free Exercise Clause affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom—not only for a minority, however small—not only for the majority, however large—but for each of us.

South Carolina would deny unemployment benefits to a mother unavailable for work on Saturdays because she was unable to get a babysitter. Thus, we do not have before us a situation where a State provides unemployment compensation generally, and singles out for disqualification only those persons who are unavailable for work on religious grounds. This is not, in short, a scheme which operates so as to discriminate against religion as such. But the Court nevertheless holds that the State must prefer a religious over a secular ground for being unavailable for work—that state financial support of the appellant's religion is constitutionally required to carry out ‘the governmental obligation of neutrality in the face of religious differences.’

Yet in cases decided under the Establishment Clause the Court has decreed otherwise. It has decreed that government must blind itself to the differing religious beliefs and traditions of the people. With all respect, I think it is the Court’s duty to face up to the dilemma posed by the conflict between the Free Exercise Clause of the Constitution and the Establishment Clause as interpreted by the Court. It is a duty, I submit, which we owe to the people, the States, and the Nation, and a duty which we owe to ourselves. For so long as the resounding but fallacious fundamentalist rhetoric of some of our Establishment Clause opinions remains on our books, to be disregarded at will as in the present case, or to be undiscriminatingly invoked as in the Schempp case, so long will the possibility of consistent and perceptive decision in this most difficult and delicate area of constitutional law be impeded and impaired. And so long, I fear, will the guarantee of true religious freedom in our pluralistic society be uncertain and insecure.


My second difference with the Court's opinion is that I cannot agree that to day’s decision can stand consistently with Braunfeld v. Brown. The Court says that there was a ‘less direct burden upon religious practices' in that case than in this. With all respect, I think the Court is mistaken, simply as a matter of fact. The Braunfeld case involved a state criminal statute. The undisputed effect of that statute, as pointed out by Mr. Justice BRENNAN in his dissenting opinion in that case, was that “Plaintiff, Abraham Braunfeld, will be unable to continue in his business if he may not stay open on Sunday and he will thereby lose his capital investment. In other words, the issue in this case—and we do not understand either appellees or the Court to contend otherwise—is whether a State may put an individual to a choice between his business and his religion.”

The impact upon the appellant’s religious freedom in the present case is considerably less onerous. We deal here not with a criminal statute, but with the particularized administration of South Carolina's Unemployment Compensation Act. Even upon the unlikely assumption that the appellant could not find suitable non-Saturday employment, the appellant at the worst would be denied a maximum of 22 weeks of compensation payments. I agree with the Court that the possibility of that denial is enough to infringe upon the appellant's constitutional right to the free exercise of her religion. But it is clear to me that in order to reach this conclusion the court must explicitly reject the reasoning of Braunfeld v. Brown. I think the Braunfeld case was wrongly decided and should be overruled, and accordingly I concur in the result reached by the Court in the case before us.

Mr. Justice HARLAN, whom Mr. Justice WHITE joins, dissenting.

Today’s decision is disturbing both in its rejection of existing precedent and in its implications for the future. The significance of the decision can best be understood after an examination of the state law applied in this case.

South Carolina’s Unemployment Compensation Law was enacted in 1936 in response to the grave social and economic problems that arose during the depression of that period. As stated in the statute itself:

Economic insecurity due to unemployment is a serious menace to health, morals and welfare of the people of this State; involuntary unemployment is therefore a subject of general interest and concern; the achievement of social security requires protection against this greatest hazard of our economic life; this can be provided by encouraging the employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance.

Thus the purpose of the legislature was to tide people over, and to avoid social and economic chaos, during periods when work was unavailable. But at the same time there was clearly no intent to provide relief for those who for purely personal reasons were or became unavailable for work. In accordance with this design, the legislature provided that ‘(a)n unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that (h)e is able to work and is available for work.’

The South Carolina Supreme Court has uniformly applied this law in conformity with its clearly expressed purpose. It has consistently held that one is not ‘available for work’ if his unemployment has resulted not from the inability of industry to provide a job but rather from personal circ*mstances, no matter how compelling. The reference to ‘involuntary unemployment’ in the legislative statement of policy, whatever a sociologist, philosopher, or theologian might say, has been interpreted not to embrace such personal circ*mstances.

In the present case all that the state court has done is to apply these accepted principles. Since virtually all of the mills in the Spartanburg area were operating on a six-day week, the appellant was ‘unavailable for work,’ and thus ineligible for benefits, when personal considerations prevented her from accepting employment on a full-time basis in the industry and locality in which she had worked. The fact that these personal considerations sprang from her religious convictions was wholly without relevance to the state court's application of the law. Thus in no proper sense can it be said that the State discriminated against the appellant on the basis of her religious beliefs or that she was denied benefits because she was a Seventh-day Adventist. She was denied benefits just as any other claimant would be denied benefits who was not ‘available for work’ for personal reasons.

With this background, this Court's decision comes into clearer focus. What the Court is holding is that if the State chooses to condition unemployment compensation on the applicant's availability for work, it is constitutionally compelled to carve out an exception—and to provide benefits—for those whose unavailability is due to their religious convictions. Such a holding has particular significance in two respects.

First, despite the Court’s protestations to the contrary, the decision necessarily overrules Braunfeld v. Brown, which held that it did not offend the ‘Free Exercise’ Clause of the Constitution for a State to forbid a Sabbatarian to do business on Sunday. The secular purpose of the statute before us today is even clearer than that involved in Braunfeld. And just as in Braunfeld—where exceptions to the Sunday closing laws for Sabbatarians would have been inconsistent with the purpose to achieve a uniform day of rest and would have required case-by-case inquiry into religious beliefs—so here, an exception to the rules of eligibility based on religious convictions would necessitate judicial examination of those convictions and would be at odds with the limited purpose of the statute to smooth out the economy during periods of industrial instability. Finally, the indirect financial burden of the present law is far less than that involved in Braunfeld. Forcing a store owner to close his business on Sunday may well have the effect of depriving him of a satisfactory livelihood if his religious convictions require him to close on Saturday as well. Here we are dealing only with temporary benefits, amounting to a fraction of regular weekly wages and running for not more than 22 weeks. Clearly, any differences between this case and Braunfeld cut against the present appellant.

Second, the implications of the present decision are far more troublesome than its apparently narrow dimensions would indicate at first glance. The meaning of today’s holding, as already noted, is that the State must furnish unemployment benefits to one who is unavailable for work if the unavailability stems from the exercise of religious convictions. The State, in other words, must single out for financial assistance those whose behavior is religiously motivated, even though it denies such assistance to others whose identical behavior (in this case, inability to work no Saturdays) is not religiously motivated.

It has been suggested that such singling out of religious conduct for special treatment may violate the constitutional limitations on state action. My own view, however, is that at least under the circ*mstances of this case it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant. The constitutional obligation of ‘neutrality’ is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. There are too many instances in which no such course can be charted, too many areas in which the pervasive activities of the State justify some special provision for religion to prevent it from being submerged by an all-embracing secularism. The State violates its obligation of neutrality when, for example, it mandates a daily religious exercise in its public schools, with all the attendant pressures on the school children that such an exercise entails. But there is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to the exercise of religious beliefs such as appellant's.

For very much the same reasons, however, I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area. Such compulsion in the present case is particularly inappropriate in light of the indirect, remote, and insubstantial effect of the decision below on the exercise of appellant's religion and in light of the direct financial assistance to religion that today's decision requires.

For these reasons I respectfully dissent from the opinion and judgment of the Court.

Wisconsin v. Yoder

406 U.S. 205 (1972)

Mr. Chief Justice BURGER delivered the opinion of the Court.

On petition of the State of Wisconsin, we granted the writ of certiorari in this case to review a decision of the Wisconsin Supreme Court holding that respondents’ convictions for violating the State’s compulsory school-attendance law were invalid under the Free Exercise Clause of the First Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment. For the reasons hereafter stated we affirm the judgment of the Supreme Court of Wisconsin.

Respondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church. They and their families are residents of Green County, Wisconsin. Wisconsin's compulsory school-attendance law required them to cause their children to attend public or private school until reaching age 16 but the respondents declined to send their children, ages 14 and 15, to public school after they complete the eighth grade. The children were not enrolled in any private school, or within any recognized exception to the compulsory-attendance law, and they are conceded to be subject to the Wisconsin statute.

On complaint of the school district administrator for the public schools, respondents were charged, tried, and convicted of violating the compulsory-attendance law in Green County Court and were fined the sum of $5 each. Respondents defended on the ground that the application of the compulsory-attendance law violated their rights under the First and Fourteenth Amendments. The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children's attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children. The State stipulated that respondents' religious beliefs were sincere.

In support of their position, respondents presented as expert witnesses scholars on religion and education whose testimony is uncontradicted. They expressed their opinions on the relationship of the Amish belief concerning school attendance to the more general tenets of their religion, and described the impact that compulsory high school attendance could have on the continued survival of Amish communities as they exist in the United States today. The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century who rejected institutionalized churches and sought to return to the early, simple, Christian life de-emphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.

A related feature of Old Order Amish communities is their devotion to a life in harmony with nature and the soil, as exemplified by the simple life of the early Christian era that continued in America during much of our early national life. Amish beliefs require members of the community to make their living by farming or closely related activities. Broadly speaking, the Old Order Amish religion pervades and determines the entire mode of life of its adherents. Their conduct is regulated in great detail by the Ordnung, or rules, of the church community. Adult baptism, which occurs in late adolescence, is the time at which Amish young people voluntarily undertake heavy obligations, not unlike the Bar Mitzvah of the Jews, to abide by the rules of the church community.

Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a ‘wordly’ influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing; a life of ‘goodness,’ rather than a life of intellect; wisdom, rather than technical knowledge, community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.

Formal high school education beyond the eighth grade is contrary to Amish beliefs, not only because it places Amish children in an environment hostile to Amish beliefs with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned basic reading, writing, and elementary mathematics, these tratis, skills, and attitudes admittedly fall within the category of those best learned through example and ‘doing’ rather than in a classroom. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith—and may even be hostile to it—interposes a serious barrier to the integration of the Amish child into the Amish religious community. Dr. John Hostetler, one of the experts on Amish society, testified that the modern high school is not equipped, in curriculum or social environment, to impart the values promoted by Amish society.

The Amish do not object to elementary education through the first eight grades as a general proposition because they agree that their children must have basic skills in the ‘three R's' in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily affairs. They view such a basic education as acceptable because it does not significantly expose their children to wordly values or interfere with their development in the Amish community during the crucial adolescent period. While Amish accept compulsory elementary education generally, wherever possible they have established their own elementary schools in many respects like the small local schools of the past. In the Amish belief higher learning tends to develop values they reject as influences that alienate man from God.

On the basis of such considerations, Dr. Hostetler testified that compulsory high school attendance could not only result in great psychological harm to Amish children, because of the conflicts it would produce, but would also, in his opinion, ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today. The testimony of Dr. Donald A. Erickson, an expert witness on education, also showed that the Amish succeed in preparing their high school age children to be productive members of the Amish community. He described their system of learning through doing the skills directly relevant to their adult roles in the Amish community as ‘ideal’ and perhaps superior to ordinary high school education. The evidence also showed that the Amish have an excellent record as law-abiding and generally self-sufficient members of society.

Although the trial court in its careful findings determined that the Wisconsin compulsory school-attendance law ‘does interfere with the freedom of the Defendants to act in accordance with their sincere religious belief’ it also concluded that the requirement of high school attendance until age 16 was a ‘reasonable and constitutional’ exercise of governmental power, and therefore denied the motion to dismiss the charges. The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court, however, sustained respondents' claim under the Free Exercise Clause of the First Amendment and reversed the convictions. A majority of the court was of the opinion that the State had failed to make an adequate showing that its interest in ‘establishing and maintaining an educational system overrides the defendants' right to the free exercise of their religion.’


There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g., Pierce v. Society of Sisters (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon's statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their off-spring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. Thus, a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, ‘prepare (them) for additional obligations.’

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. The invalidation of financial aid to parochial schools by government grants for a salary subsidy for teachers is but one example of the extent to which courts have gone in this regard, notwithstanding that such aid programs were legislatively determined to be in the public interest and the service of sound educational policy by States and by Congress.

The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.


We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin's compulsory school-attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forbears have adhered to for almost three centuries. In evaluating those claims we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a ‘religious' belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.

Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, ‘be not conformed to this world . . ..’ This command is fundamental to the Amish faith. Moreover, for the Old Order Amish, religion is not simply a matter of theocratic belief. As the expert witnesses explained, the Old Order Amish religion pervades and determines virtually their entire way of life, regulating it with the detail of the Talmudic diet through the strictly enforced rules of the church community.

The record shows that the respondents' religious beliefs and attitude toward life, family, and home have remained constant—perhaps some would say static—in a period of unparalleled progress in human knowledge generally and great changes in education. The respondents freely concede, and indeed assert as an article of faith, that their religious beliefs and what we would today call ‘life style’ have not altered in fundamentals for centuries. Their way of life in a church-oriented community, separated from the outside world and ‘worldly’ influences, their attachment to nature and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform. Their rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, their habits of manual work do indeed set them apart from much of contemporary society; these customs are both symbolic and practical.

As the society around the Amish has become more populous, urban, industrialized, and complex, particularly in this century, government regulation of human affairs has correspondingly become more detailed and pervasive. The Amish mode of life has thus come into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards. So long as compulsory education laws were confined to eight grades of elementary basic education imparted in a nearby rural schoolhouse, with a large proportion of students of the Amish faith, the Old Order Amish had little basis to fear that school attendance would expose their children to the worldly influence they reject. But modern compulsory secondary education in rural areas is now largely carried on in a consolidated school, often remote from the student's home and alien to his daily home life. As the record so strongly shows, the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion; modern laws requiring compulsory secondary education have accordingly engendered great concern and conflict. The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.

The impact of the compulsory-attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. Nor is the impact of the compulsory-attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent. As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.

In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents' entire mode of life support the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents' religious beliefs.


Neither the findings of the trial court nor the Amish claims as to the nature of their faith are challenged in this Court by the State of Wisconsin. Its position is that the State's interest in universal compulsory formal secondary education to age 16 is so great that it is paramount to the undisputed claims of respondents that their mode of preparing their youth for Amish life, after the traditional elementary education, is an essential part of their religious belief and practice. Nor does the State undertake to meet the claim that the Amish mode of life and education is inseparable from and a part of the basic tenets of their religion—indeed, as much a part of their religious belief and practices as baptism, the confessional, or a sabbath may be for others.

Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State's control, but it argues that ‘actions,’ even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. E.g., Sherbert v. Verner; Murdock v. Pennsylvania; Cantwell v. Connecticut. This case, therefore, does not become easier because respondents were convicted for their ‘actions' in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments.

Nor can this case be disposed of on the grounds that Wisconsin's requirement for school attendance to age 16 applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion, or that it is motivated by legitimate secular concerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. The Court must not ignore the danger that an exception from a general obligation of citizenship on religious grounds may run afoul of the Establishment Clause, but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise. By preserving doctrinal flexibility and recognizing the need for a sensible and realistic application of the Religion Clauses “we have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a ‘tight rope’ and one we have successfully traversed.”

We turn, then, to the State's broader contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way. Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption.

The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society. We accept these propositions.

However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. Respondents’ experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.

The State attacks respondents’ position as one fostering ‘ignorance’ from which the child must be protected by the State. No one can question the State's duty to protect children from ignorance but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional ‘mainstream.’ Its members are productive and very law-abiding members of society; they reject public welfare in any of its usual modern forms. The Congress itself recognized their self-sufficiency by authorizing exemption of such groups as the Amish from the obligation to pay social security taxes.

It is neither fair nor correct to suggests that the Amish are opposed to education beyond the eighth grade level. What this record shows is that they are opposed to conventional formal education of the type provided by a certified high school because it comes at the child's crucial adolescent period of religious development. Dr. Donald Erickson, for example, testified that their system of learning-by-doing was an ‘ideal system’ of education in terms of preparing Amish children for life as adults in the Amish community, and that ‘I would be inclined to say they do a better job in this than most of the rest of us do.’ As he put it, ‘These people aren't purporting to be learned people, and it seems to me the self-sufficiency of the community is the best evidence I can point to—whatever is being done seems to function well.’

We must not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today’s majority is ‘right’ and the Amish and others like them are ‘wrong.’ A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.

The State, however, supports its interest in providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some such children will choose to leave the Amish community, and that if this occurs they will be ill-equipped for life. The State argues that if Amish children leave their church they should not be in the position of making their way in the world without the education available in the one or two additional years the State requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational shortcomings. Indeed, this argument of the State appears to rest primarily on the State's mistaken assumption, already noted, that the Amish do not provide any education for their children beyond the eighth grade, but allow them to grow in ‘ignorance.’ To the contrary, not only do the Amish accept the necessity for formal schooling through the eighth grade level, but continue to provide what has been characterized by the undisputed testimony of expert educators as an ‘ideal’ vocational education for their children in the adolescent years.

There is nothing in this record to suggest that the Amish qualities of reliability, self-reliance, and dedication to work would fail to find ready markets in today’s society. Absent some contrary evidence supporting the State's position, we are unwilling to assume that persons possessing such valuable vocational skills and habits are doomed to become burdens on society should they determine to leave the Amish faith, nor is there any basis in the record to warrant a finding that an additional one or two years of formal school education beyond the eighth grade would serve to eliminate any such problem that might exist.

Insofar as the State’s claim rests on the view that a brief additional period of formal education is imperative to enable the Amish to participate effectively and intelligently in our democratic process, it must fall. The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life under self-imposed limitations on relations with the world, and to survive and prosper in contemporary society as a separate, sharply identifiable and highly self-sufficient community for more than 200 years in this country. In itself this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief. When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny, there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. Indeed, the Amish communities singularly parallel and reflect many of the virtues of Jefferson’s ideal of the ‘sturdy yeoman’ who would form the basis of what he considered as the ideal of a democratic society. Even their idiosyncratic separateness exemplifies the diversity we profess to admire and encourage.

The requirement for compulsory education beyond the eighth grade is a relatively recent development in our history. Less than 60 years ago, the educational requirements of almost all of the States were satisfied by completion of the elementary grades, at least where the child was regularly and lawfully employed. The independence and successful social functioning of the Amish community for a period approaching almost three centuries and more than 200 years in this country are strong evidence that there is at best a speculative gain, in terms of meeting the duties of citizenship, from an additional one or two years of compulsory formal education. Against this background it would require a more particularized showing from the State on this point to justify the severe interference with religious freedom such additional compulsory attendance would entail.

We should also note that compulsory education and child labor laws find their historical origin in common humanitarian instincts, and that the age limits of both laws have been coordinated to achieve their related objectives. In the context of this case, such considerations, if anything, support rather than detract from respondents’ position. The origins of the requirement for school attendance to age 16, an age falling after the completion of elementary school but before completion of high school, are not entirely clear. But to some extent such laws reflected the movement to prohibit most child labor under age 16 that culminated in the provisions of the Federal Fair Labor Standards Act of 1938. It is true, then, that the 16-year child labor age limit may to some degree derive from a contemporary impression that children should be in school until that age. But at the same time, it cannot be denied that, conversely, the 16-year education limit reflects, in substantial measure, the concern that children under that age not be employed under conditions hazardous to their health, or in work that should be performed by adults.

The requirement of compulsory schooling to age 16 must therefore be viewed as aimed not merely at providing educational opportunities for children, but as an alternative to the equally undesirable consequence of unhealthful child labor displacing adult workers, or, on the other hand, forced idleness. The two kinds of statutes—compulsory school attendance and child labor laws—tend to keep children of certain ages off the labor market and in school; this regimen in turn provides opportunity to prepare for a livelihood of a higher order than that which children could pursue without education and protects their health in adolescence.

In these terms, Wisconsin’s interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally. For, while agricultural employment is not totally outside the legitimate concerns of the child labor laws, employment of children under parental guidance and on the family farm from age 14 to age 16 is an ancient tradition that lies at the periphery of the objectives of such laws. There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health or that Amish parents exploit children at tender years. Any such inference would be contrary to the record before us. Moreover, employment of Amish children on the family farm does not present the undesirable economic aspects of eliminating jobs that might otherwise be held by adults.


Finally, the State, on authority of Prince v. Massachusetts, argues that a decision exempting Amish children from the State's requirement fails to recognize the substantive right of the Amish child to a secondary education, and fails to give due regard to the power of the State as parens patriae to extend the benefit of secondary education to children regardless of the wishes of their parents. Taken at its broadest sweep, the Court’s language in Prince, might be read to give support to the State's position. However, the Court was not confronted in Prince with a situation comparable to that of the Amish as revealed in this record; this is shown by the Court’s severe characterization of the evils that it thought the legislature could legitimately associate with child labor, even when performed in the company of an adult. . . .

This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. The record is to the contrary, and any reliance on that theory would find no support in the evidence.

Contrary to the suggestion of the dissenting opinion of Mr. Justice DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it is their right of free exercise, not that of their children, that must determine Wisconsin’s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary. The State’s position from the outset has been that it is empowered to apply its compulsory-attendance law to Amish parents in the same manner as to other parents—that is, without regard to the wishes of the child. That is the claim we reject today.

Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court’s past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here and those presented in Pierce v. Society of Sisters. On this record we neither reach nor decide those issues.

The State’s argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsory-education law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. The same argument could, of course, be made with respect to all church schools short of college. There is nothing in the record or in the ordinary course of human experience to suggest that non-Amish parents generally consult with children of ages 14—16 if they are placed in a church school of the parents’ faith.

Indeed it seems clear that if the State is empowered, as parens patriae, to ‘save’ a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will in large measure influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce v. Society of Sisters, in which the Court observed:

. . . . The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

The duty to prepare the child for ‘additional obligations,’ referred to by the Court, must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship. Pierce, of course, recognized that where nothing more than the general interest of the parent in the nurture and education of his children is involved, it is beyond dispute that the State acts ‘reasonably’ and constitutionally in requiring education to age 16 in some public or private school meeting the standards prescribed by the State.

However read, the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State's requirement under the First Amendment. To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. But in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its claims in terms of the welfare of the child and society as a whole. The record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.

In the fact of our consistent emphasis on the central values underlying the Religion Clauses in our constitutional scheme of government, we cannot accept a parens patriae claim of such all-encompassing scope and with such sweeping potential for broad and unforeseeable application as that urged by the State.


For the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age 16. Our disposition of this case, however, in no way alters our recognition of the obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education. This should suggest that courts must move with great circ*mspection in performing the sensitive and delicate task of weighing a State’s legitimate social concern when faced with religious claims for exemption from generally applicable education requirements. It cannot be overemphasized that we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some ‘progressive’ or more enlightened process for rearing children for modern life.

Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.

Nothing we hold is intended to undermine the general applicability of the State’s compulsory school-attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion.

Mr. Justice DOUGLAS, dissenting in part.


I agree with the Court that the religious scruples of the Amish are opposed to the education of their children beyond the grade schools, yet I disagree with the Court’s conclusion that the matter is within the dispensation of parents alone. The Court’s analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other. The difficulty with this approach is that, despite the Court's claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children.

It is argued that the right of the Amish children to religious freedom is not presented by the facts of the case, as the issue before the Court involves only the Amish parents’ religious freedom to defy a state criminal statute imposing upon them an affirmative duty to cause their children to attend high school.

First, respondents’ motion to dismiss in the trial court expressly asserts, not only the religious liberty of the adults, but also that of the children, as a defense to the prosecutions. It is, of course, beyond question that the parents have standing as defendants in a criminal prosecution to assert the religious interests of their children as a defense. Although the lower courts and a majority of this Court assume an identity of interest between parent and child, it is clear that they have treated the religious interest of the child as a factor in the analysis.

Second, it is essential to reach the question to decide the case, not only because the question was squarely raised in the motion to dismiss, but also because no analysis of religious-liberty claims can take place in a vacuum. If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents' notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child’s rights to permit such an imposition without canvassing his views. As in Prince v. Massachusetts, it is an imposition resulting from this very litigation. As the child has no other effective forum, it is in this litigation that his rights should be considered. And, if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents’ religiously motivated objections.

Religion is an individual experience. It is not necessary, nor even appropriate, for every Amish child to express his views on the subject in a prosecution of a single adult. Crucial, however, are the views of the child whose parent is the subject of the suit. Frieda Yoder has in fact testified that her own religious views are opposed to high-school education. I therefore join the judgment of the Court as to respondent Jonas Yoder. But Frieda Yoder’s views may not be those of Vernon Yutzy or Barbara Miller. I must dissent, therefore, as to respondents Adin Yutzy and Wallace Miller as their motion to dismiss also raised the question of their children's religious liberty.


This issue has never been squarely presented before today. Our opinions are full of talk about the power of the parents over the child's education. And we have in the past analyzed similar conflicts between parent and State with little regard for the views of the child. Recent cases, however, have clearly held that the children themselves have constitutionally protectible interests. . . .

On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition.

It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.

The views of the two children in question were not canvassed by the Wisconsin courts. The matter should be explicitly reserved so that new hearings can be held on remand of the case.


I think the emphasis of the Court on the ‘law and order’ record of this Amish group of people is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony records of its members might be. I am not at all sure how the Catholics, Episcopalians, the Baptists, Jehovah's Witnesses, the Unitarians, and my own Presbyterians would make out if subjected to such a test. It is, of course, true that if a group or society was organized to perpetuate crime and if that is its motive, we would have rather startling problems akin to those that were raised when some years back a particular sect was challenged here as operating on a fraudulent basis. But no such factors are present here, and the Amish, whether with a high or low criminal record, certainly qualify by all historic standards as a religion within the meaning of the First Amendment.

The Court rightly rejects the notion that actions, even though religiously grounded, are always outside the protection of the Free Exercise Clause of the First Amendment. In so ruling, the Court departs from the teaching of Reynolds v. United States, where it was said concerning the reach of the Free Exercise Clause of the First Amendment, ‘Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.’ In that case it was conceded that polygamy was a part of the religion of the Mormons. Yet the Court said, ‘It matters not that his belief (in polygamy) was a part of his professed religion: it was still belief and belief only.’

Action, which the Court deemed to be antisocial, could be punished even though it was grounded on deeply held and sincere religious convictions. What we do today, at least in this respect, opens the way to give organized religion a broader base than it has ever enjoyed; and it even promises that in time Reynolds will be overruled. . .

Trans World Airlines, Inc. v. Hardison

432 U.S. 63 (1977)

MR. JUSTICE WHITE delivered the opinion of the Court.

Section 703(a)(1) of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to discriminate against an employee or a prospective employee on the basis of his or her religion. At the time of the events involved here, a guideline of the Equal Employment Opportunity Commission (EEOC) required, as the Act itself now does, that an employer, short of “undue hardship,” make “reasonable accommodations” to the religious needs of its employees. The issue in this case is the extent of the employer's obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.


We summarize briefly the facts found by the District Court.

Petitioner Trans World Airlines (TWA) operates a large maintenance and overhaul base in Kansas City, Mo. On June 5, 1967, respondent Larry G. Hardison was hired by TWA to work as a clerk in the Stores Department at its Kansas City base. Because of its essential role in the Kansas City operation, the Stores Department must operate 24 hours per day, 365 days per year, and whenever an employee's job in that department is not filled, an employee must be shifted from another department, or a supervisor must cover the job, even if the work in other areas may suffer.

Hardison, like other employees at the Kansas City base, was subject to a seniority system contained in a collective bargaining agreement that TWA maintains with petitioner International Association of Machinists and Aerospace Workers (IAM). The seniority system is implemented by the union steward through a system of bidding by employees for particular shift assignments as they become available. The most senior employees have first choice for job and shift assignments, and the most junior employees are required to work when the union steward is unable to find enough people willing to work at a particular time or in a particular job to fill TWA’s needs.

In the spring of 1968 Hardison began to study the religion known as the Worldwide Church of God. One of the tenets of that religion is that one must observe the Sabbath by refraining from performing any work from sunset on Friday until sunset on Saturday. The religion also proscribes work on certain specified religious holidays.

When Hardison informed Everett Kussman, the manager of the Stores Department, of his religious conviction regarding observance of the Sabbath, Kussman agreed that the union steward should seek a job swap for Hardison or a change of days off; that Hardison would have his religious holidays off whenever possible if Hardison agreed to work the traditional holidays when asked; and that Kussman would try to find Hardison another job that would be more compatible with his religious beliefs. The problem was temporarily solved when Hardison transferred to the 11 p.m.-7 a.m. shift. Working this shift permitted Hardison to observe his Sabbath.

The problem soon reappeared when Hardison bid for and received a transfer from Building 1, where he had been employed, to Building 2, where he would work the day shift. The two buildings had entirely separate seniority lists; and, while in Building 1, Hardison had sufficient seniority to observe the Sabbath regularly, he was second from the bottom on the Building 2 seniority list.

In Building 2, Hardison was asked to work Saturdays when a fellow employee went on vacation. TWA agreed to permit the union to seek a change of work assignments for Hardison, but the union was not willing to violate the seniority provisions set out in the collective bargaining contract, and Hardison had insufficient seniority to bid for a shift having Saturdays off.

A proposal that Hardison work only four days a week was rejected by the company. Hardison's job was essential, and, on weekends, he was the only available person on his shift to perform it. To leave the position empty would have impaired supply shop functions, which were critical to airline operations; to fill Hardison's position with a supervisor or an employee from another area would simply have undermanned another operation; and to employ someone not regularly assigned to work Saturdays would have required TWA to pay premium wages.

When an accommodation was not reached, Hardison refused to report for work on Saturdays. A transfer to the twilight shift proved unavailing since that schedule still required Hardison to work past sundown on Fridays. After a hearing, Hardison was discharged on grounds of insubordination for refusing to work during his designated shift.

Hardison, having first invoked the administrative remedy provided by Title VII, brought this action for injunctive relief in the United States District Court against TWA and IAM, claiming that his discharge by TWA constituted religious discrimination in violation of Title VII. He also charged that the union had discriminated against him by failing to represent him adequately in his dispute with TWA and by depriving him of his right to exercise his religious beliefs. Hardison’s claim of religious discrimination rested on 1967 EEOC guidelines requiring employers “to make reasonable accommodations to the religious needs of employees” whenever such accommodation would not work an “undue hardship,” and on similar language adopted by Congress in the 1972 amendments to Title VII.

After a bench trial, the District Court ruled in favor of the defendants. Turning first to the claim against the union, the District Court ruled that, although the 1967 EEOC guidelines were applicable to unions, the union's duty to accommodate Hardison’s belief did not require it to ignore its seniority system as Hardison appeared to claim. As for Hardison’s claim against TWA, the District Court rejected at the outset TWA’s contention that requiring it in any way to accommodate the religious needs of its employees would constitute an unconstitutional establishment of religion. As the District Court construed the Act, however, TWA had satisfied its “reasonable accommodations” obligation, and any further accommodation would have worked an undue hardship on the company.

The Court of Appeals for the Eighth Circuit reversed the judgment for TWA. It agreed with the District Court’s constitutional ruling, but held that TWA had not satisfied its duty to accommodate. Because it did not appear that Hardison had attacked directly the judgment in favor of the union, the Court of Appeals affirmed that judgment without ruling on its substantive merits.

In separate petitions for certiorari TWA and IAM contended that adequate steps had been taken to accommodate Hardison's religious observances and that to construe the statute to require further efforts at accommodation would create an establishment of religion contrary to the First Amendment of the Constitution. TWA also contended that the Court of Appeals improperly ignored the District Court's findings of fact.

We granted both petitions for certiorari. Because we agree with petitioners that their conduct was not a violation of Title VII, we need not reach the other questions presented.


The Court of Appeals found that TWA had committed an unlawful employment practice under § 703(a)(1) of the Act, which provides: “(a) It shall be an unlawful employment practice for an employer –”

“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”

The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin. This is true regardless of whether the discrimination is directed against majorities or minorities.

The prohibition against religious discrimination soon raised the question of whether it was impermissible under § 703(a)(1) to discharge or refuse to hire a person who for religious reasons refused to work during the employer's normal workweek. In 1966, an EEOC guideline dealing with this problem declared that an employer had an obligation under the statute “to accommodate to the reasonable religious needs of employees . . . where such accommodation can be made without serious inconvenience to the conduct of the business.”

In 1967, the EEOC amended its guidelines to require employers “to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.”

The EEOC did not suggest what sort of accommodations are “reasonable” or when hardship to an employer becomes “undue.” This question —the extent of the required accommodation—remained unsettled when this Court, in Dewey v. Reynolds Metals Co., affirmed by an equally divided Court the Sixth Circuit’s decision. The discharge of an employee who, for religious reasons, had refused to work on Sundays was there held by the Court of Appeals not to be an unlawful employment practice because the manner in which the employer allocated Sunday work assignments was discriminatory in neither its purpose nor effect; and, consistent with the 1967 EEOC guidelines, the employer had made a reasonable accommodation of the employee's beliefs by giving him the opportunity to secure a replacement for his Sunday work.

In part “to resolve by legislation” some of the issues raised in Dewey, Congress included the following definition of religion in its 1972 amendments to Title VII:

“The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer's business.”

The intent and effect of this definition was to make it an unlawful employment practice under § 703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees. But like the EEOC guidelines, the statute provides no guidance for determining the degree of accommodation that is required of an employer. The brief legislative history of § 701(j) is likewise of little assistance in this regard.

In brief, the employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines. With this in mind, we turn to a consideration of whether TWA has met its obligation under Title VII to accommodate the religious observances of its employees.


The Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison's religious needs under the 1967 EEOC guidelines in effect at the time the relevant events occurred. In its view, TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship. First, within the framework of the seniority system, TWA could have permitted Hardison to work a four-day week, utilizing in his place a supervisor or another worker on duty elsewhere. That this would have caused other shop functions to suffer was insufficient to amount to undue hardship in the opinion of the Court of Appeals. Second—according to the Court of Appeals, also within the bounds of the collective bargaining contract—the company could have filled Hardison’s Saturday shift from other available personnel competent to do the job, of which the court said there were at least 200. That this would have involved premium overtime pay was not deemed an undue hardship. Third, TWA could have arranged a “swap between Hardison and another employee either for another shift or for the Sabbath days.” In response to the assertion that this would have involved a breach of the seniority provisions of the contract, the court noted that it had not been settled in the courts whether the required statutory accommodation to religious needs stopped short of transgressing seniority rules, but found it unnecessary to decide the issue because, as the Court of Appeals saw the record, TWA had not sought, and the union had therefore not declined to entertain, a possible variance from the seniority provisions of the collective bargaining agreement. The company had simply left the entire matter to the union steward, who, the Court of Appeals said, “likewise did nothing.”

We disagree with the Court of Appeals in all relevant respects. It is our view that TWA made reasonable efforts to accommodate, and that each of the Court of Appeals’ suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines.


It might be inferred from the Court of Appeals' opinion and from the brief of the EEOC in this Court that TWA’s efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed:

“TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff’s problems. It did accommodate plaintiff’s observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure.”

It is also true that TWA itself attempted without success to find Hardison another job. The District Court’s view was that TWA had done all that could reasonably be expected within the bounds of the seniority system. The Court of Appeals observed, however, that the possibility of a variance from the seniority system was never really posed to the union. This is contrary to the District Court’s findings and to the record. The District Court found that, when TWA first learned of Hardison’s religious observances in April, 1968, it agreed to permit the union’s steward to seek a swap of shifts or days off, but that “the steward reported that he was unable to work out scheduling changes, and that he understood that no one was willing to swap days with plaintiff.” Later, in March, 1969, at a meeting held just two days before Hardison first failed to report for his Saturday shift, TWA again

“offered to accommodate plaintiff’s religious observance by agreeing to any trade of shifts or change of sections that plaintiff and the union could work out. . . . Any shift or change was impossible within the seniority framework, and the union was not willing to violate the seniority provisions set out in the contract to make a shift or change.”

As the record shows, Hardison himself testified that Kussman was willing, but the union was not, to work out a shift or job trade with another employee.

We shall say more about the seniority system, but, at this juncture, it appears to us that the system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA’s employees. As will become apparent, the seniority system represents a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off. Additionally, recognizing that weekend work schedules are the least popular, the company made further accommodation by reducing its workforce to a bare minimum on those days.


We are also convinced, contrary to the Court of Appeals, that TWA itself cannot be faulted for having failed to work out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective bargaining agreement.


Hardison and the EEOC insist that the statutory obligation to accommodate religious needs takes precedence over both the collective bargaining contract and the seniority rights of TWA’s other employees. We agree that neither a collective bargaining contract nor a seniority system may be employed to violate the statute, but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances. The issue is important and warrants some discussion.

[The Court then described the burden that would be placed on other workers should a religious employee’s religious absence requests be permitted notwithstanding the seniority system.]

It was essential to TWA’s business to require Saturday and Sunday work from at least a few employees even though most employees preferred those days off. Allocating the burdens of weekend work was a matter for collective bargaining. In considering criteria to govern this allocation, TWA and the union had two alternatives: adopt a neutral system, such as seniority, a lottery, or rotating shifts; or allocate days off in accordance with the religious needs of its employees. TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.

Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities, as well as minorities. Indeed, the foundation of Hardison’s claim is that TWA and IAM engaged in religious discrimination in violation of 703(a)(1) when they failed to arrange for him to have Saturdays off. It would be anomalous to conclude that, by “reasonable accommodation,” Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.


Our conclusion is supported by the fact that seniority systems are afforded special treatment under Title VII itself. Section 703(h) provides in pertinent part:

“Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin. . . .”

“[T]he unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII.” Teamsters v. United States (1977). Section 703(h) is “a definitional provision; as with the other provisions of § 703, subsection (h) delineates which employment practices are illegal, and thereby prohibited, and which are not.” Franks v. Bowman Transportation Co (1976). Thus, absent a discriminatory purpose, the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences.

There has been no suggestion of discriminatory intent in this case. “The seniority system was not designed with the intention to discriminate against religion, nor did it act to lock members of any religion into a pattern wherein their freedom to exercise their religion was limited. It was coincidental that, in plaintiff’s case, the seniority system acted to compound his problems in exercising his religion.”

The Court of Appeals’ conclusion that TWA was not limited by the terms of its seniority system was, in substance, nothing more than a ruling that operation of the seniority system was itself an unlawful employment practice even though no discriminatory purpose had been shown. That ruling is plainly inconsistent with the dictates of § 703(h), both on its face and as interpreted in the recent decisions of this Court.

As we have said, TWA was not required by Title VII to carve out a special exception to its seniority system in order to help Hardison to meet his religious obligations.


The Court of Appeals also suggested that TWA could have permitted Hardison to work a four-day week if necessary in order to avoid working on his Sabbath. Recognizing that this might have left TWA short-handed on the one shift each week that Hardison did not work, the court still concluded that TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.

To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off, the Court of Appeals would, in effect, require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily in Hardison’s place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs.

As we have seen, the paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment. In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.


MR JUSTICE MARSHALL, with whom MR JUSTICE BRENNAN joins, dissenting.

One of the most intractable problems arising under Title VII of the Civil Rights Act of 1964, has been whether an employer is guilty of religious discrimination when he discharges an employee (or refuses to hire a job applicant) because of the employee's religious practices. Particularly troublesome has been the plight of adherents to minority faiths who do not observe the holy days on which most businesses are closed—Sundays, Christmas, and Easter—but who need time off for their own days of religious observance. The Equal Employment Opportunity Commission has grappled with this problem in two sets of regulations and in a long line of decisions. Initially [in 1967] the Commission concluded that an employer was “free under Title VII to establish a normal workweek . . . generally applicable to all employees,” and that an employee could not “demand any alteration in [his work schedule] to accommodate his religious needs.” Eventually, however, the Commission changed its view and decided that employers must reasonably accommodate such requested schedule changes except where “undue hardship” would result—for example, “where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence.”

In amending Title VII in 1972, Congress confronted the same problem, and adopted the second position of the EEOC. Both before and after the 1972 amendment, the lower courts have considered at length the circ*mstances in which employers must accommodate the religious practices of employees, reaching what the Court correctly describes as conflicting results. And on two occasions, this Court has attempted to provide guidance to the lower courts, only to find ourselves evenly divided. Today’s decision deals a fatal blow to all efforts under Title VII to accommodate work requirements to religious practices. The Court holds, in essence, that, although the EEOC regulations and the Act state that an employer must make reasonable adjustments in his work demands to take account of religious observances, the regulation and Act do not really mean what they say. An employer, the Court concludes, need not grant even the most minor special privilege to religious observers to enable them to follow their faith. As a question of social policy, this result is deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job. And, as a matter of law, today’s result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972, as if we were free to disregard congressional choices that a majority of this Court thinks unwise. I therefore dissent.


With respect to each of the proposed accommodations to respondent Hardison’s religious observances that the Court discusses, it ultimately notes that the accommodation would have required “unequal treatment,” in favor of the religious observer. That is quite true. But if an accommodation can be rejected simply because it involves preferential treatment, then the regulation and the statute, while brimming with “sound and fury,” ultimately “signif[y] nothing.”

The accommodation issue by definition arises only when a neutral rule of general applicability conflicts with the religious practices of a particular employee. In some of the reported cases, the rule in question has governed work attire; in other cases, it has required attendance at some religious function; in still other instances, it has compelled membership in a union; and in the largest class of cases, it has concerned work schedules. What all these cases have in common is an employee who could comply with the rule only by violating what the employee views as a religious commandment. In each instance, the question is whether the employee is to be exempt from the rule’s demands. To do so will always result in a privilege being “allocated according to religious beliefs,” unless the employer gratuitously decides to repeal the rule in toto. What the statute says, in plain words, is that such allocations are required unless “undue hardship” would result.

The point is perhaps best made by considering a not altogether hypothetical example. Assume that an employer requires all employees to wear a particular type of hat at work in order to make the employees readily identifiable to customers. Such a rule obviously does not, on its face, violate Title VII, and an employee who altered the uniform for reasons of taste could be discharged. But a very different question would be posed by the discharge of an employee who, for religious reasons, insisted on wearing over her hair a tightly fitted scarf which was visible through the hat. In such a case, the employer could accommodate this religious practice without undue hardship—or any hardship at all. Yet, as I understand the Court's analysis—and nothing in the Court's response is to the contrary—the accommodation would not be required, because it would afford the privilege of wearing scarfs to a select few based on their religious beliefs. The employee thus would have to give up either the religious practice or the job. This, I submit, makes a mockery of the statute.

In reaching this result, the Court seems almost oblivious of the legislative history of the 1972 amendments to Title VII which is briefly recounted in the Court's opinion.

[Justice Marshall outlined the legislative history in which the senator who introduced the amendment to Title VII which tracked the language of the EEOC guideline that required accommodations unless undue hardship would result explicitly cited Sabbath accommodations as appropriate.]

Moreover, while important constitutional questions would be posed by interpreting the law to compel employers (or fellow employee) to incur substantial costs to aid the religious observer, not all accommodations are costly, and the constitutionality of the statute is not placed in serious doubt simply because it sometimes requires an exemption from a work rule. Indeed, this Court has repeatedly found no Establishment Clause problems in exempting religious observers from state-imposed duties. If the State does not establish religion over nonreligion by excusing religious practitioners from obligations owed the State, I do not see how the State can be said to establish religion by requiring employers to do the same with respect to obligations owed the employer. Thus, I think it beyond dispute that the Act does—and, consistently with the First Amendment, can—require employers to grant privileges to religious observers as part of the accommodation process.


Once it is determined that the duty to accommodate sometimes requires that an employee be exempted from an otherwise valid work requirement, the only remaining question is whether this is such a case: did TWA prove that it exhausted all reasonable accommodations, and that the only remaining alternatives would have caused undue hardship on TWA’s business? To pose the question is to answer it, for all that the District Court found TWA had done to accommodate respondent's Sabbath observance was that it “held several meetings with [respondent] . . . [and] authorized the union steward to search for someone who would swap shifts.” To conclude that TWA, one of the largest air carriers in the Nation, would have suffered undue hardship had it done anything more defies both reason and common sense.

The Court implicitly assumes that the only means of accommodation open to TWA were to compel an unwilling employee to replace Hardison; to pay premium wages to a voluntary substitute; or to employ one less person during respondent’s Sabbath shift. Based on this assumption, the Court seemingly finds that each alternative would have involved undue hardship not only because Hardison would have been given a special privilege, but also because either another employee would have been deprived of rights under the collective bargaining agreement, or because “more than a de minimis cost,” would have been imposed on TWA. But the Court's myopic view of the available options is not supported by either the District Court’s findings or the evidence adduced at trial. Thus, the Court’s conclusion cannot withstand analysis, even assuming that its rejection of the alternatives it does discuss is justifiable.

To begin with; the record simply does not support the Court’s assertion, made without accompanying citations, that “[t]here were no volunteers to relieve Hardison on Saturdays.” Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, and the union stipulated that its steward had not done so either.

Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent—assuming that someone would have been willing to work Saturdays for premium pay—and passed on the cost to respondent. In fact, one accommodation Hardison suggested would have done just that by requiring Hardison to work overtime when needed at regular pay. Under this plan, the total overtime cost to the employer—and the total number of overtime hours available for other employees—would not have reflected Hardison’s Sabbath absences. Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested. Admittedly, both options would have violated the collective bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from transferring departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way. Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much, Thus, I do not believe it can be even seriously argued that TWA would have suffered “undue hardship” to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department.

What makes today’s decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for worshiping their God. The ultimate tragedy is that despite Congress' best efforts, one of this Nation's pillars of strength—our hospitality to religious diversity—has been seriously eroded. All Americans will be a little poorer until today’s decision is erased.

I respectfully dissent.

Groff v. DeJoy

600 U.S. 447 (2023)

JUSTICE ALITO delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964 requires employers to accommodate the religious practice of their employees unless doing so would impose an “undue hardship on the conduct of the employer’s business.” Based on a line in this Court’s decision in Trans World Airlines v. Hardison [described below], many lower courts, including the Third Circuit below, have interpreted “undue hardship” to mean any effort or cost that is “more than . . . de minimis.” In this case, however, both parties—the plaintiff-petitioner, Gerald Groff, and the defendant-respondent, the Postmaster General, represented by the Solicitor General—agree that the de minimis reading of Hardison is a mistake. With the benefit of thorough briefing and oral argument, we today clarify what Title VII requires.


Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest, not “secular labor” and the “transport[ation]” of worldly “goods.” In 2012, Groff began his employment with the United States Postal Service (USPS), which has more than 600,000 employees. He became a Rural Carrier Associate, a job that required him to assist regular carriers in the delivery of mail. When he took the position, it generally did not involve Sunday work. But within a few years, that changed. In 2013, USPS entered into an agreement with Amazon to begin facilitating Sunday deliveries, and in 2016, USPS signed a memorandum of understanding with the relevant union (the National Rural Letter Carriers’ Association) that set out how Sunday and holiday parcel delivery would be handled. During a 2-month peak season, each post office would use its own staff to deliver packages. At all other times, Sunday and holiday deliveries would be carried out by employees (including Rural Carrier Associates like Groff) working from a “regional hub.” For Quarryville, Pennsylvania, where Groff was originally stationed, the regional hub was the Lancaster Annex.

The memorandum specifies the order in which USPS employees are to be called on for Sunday work outside the peak season. First in line are each hub’s “Assistant Rural Carriers”— part-time employees who are assigned to the hub and cover only Sundays and holidays. Second are any volunteers from the geographic area, who are assigned on a rotating basis. And third are all other carriers, who are compelled to do the work on a rotating basis. Groff fell into this third category, and after the memorandum of understanding was adopted, he was told that he would be required to work on Sunday. He then sought and received a transfer to Holtwood, a small rural USPS station that had only seven employees and that, at the time, did not make Sunday deliveries. But in March 2017, Amazon deliveries began there as well.

With Groff unwilling to work on Sundays, USPS made other arrangements. During the peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the Holtwood staff, including the postmaster, whose job ordinarily does not involve delivering mail. During other months, Groff ’s Sunday assignments were redistributed to other carriers assigned to the regional hub. Throughout this time, Groff continued to receive “progressive discipline” for failing to work on Sundays. Finally, in January 2019, he resigned.

A few months later, Groff sued under Title VII, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.” The District Court granted summary judgment to USPS, and the Third Circuit affirmed. The panel majority felt that it was “bound by [the] ruling” in Hardison, which it construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” Under Circuit precedent, the panel observed, this was “not a difficult threshold to pass,” and it held that this low standard was met in this case. Exempting Groff from Sunday work, the panel found, had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” Judge Hardiman dissented, concluding that adverse “effects on USPS employees in Lancaster or Holtwood” did not alone suffice to show the needed hardship “on the employer’s business.”

We granted Groff ’s ensuing petition for a writ of certiorari.


Because this case presents our first opportunity in nearly 50 years to explain the contours of Hardison, we begin by recounting the legal backdrop to that case, including the development of the Title VII provision barring religious discrimination and the Equal Employment Opportunity Commission’s (EEOC’s) regulations and guidance regarding that prohibition. We then summarize how the Hardison case progressed to final decision, and finally, we discuss how courts and the EEOC have understood its significance. This background helps to explain the clarifications we offer today.


Since its passage, Title VII of the Civil Rights Act of 1964 has made it unlawful for covered employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual’s . . . religion.” As originally enacted, Title VII did not spell out what it meant by discrimination “because of . . . religion,” but shortly after the statute’s passage, the EEOC interpreted that provision to mean that employers were sometimes required to “accommodate” the “reasonable religious needs of employees.” After some tinkering, the EEOC settled on a formulation that obligated employers “to make reasonable accommodations to the religious needs of employees” whenever that would not work an “undue hardship on the conduct of the employer’s business.”

EEOC decisions did not settle the question of undue hardship. In 1970, the Sixth Circuit held (in a Sabbath case) that Title VII as then written did not require an employer “to accede to or accommodate” religious practice because that “would raise grave” Establishment Clause questions. This Court granted certiorari, but then affirmed by an evenly divided vote.

Responding to Dewey and another decision rejecting any duty to accommodate an employee’s observance of the Sabbath, Congress amended Title VII in 1972. Tracking the EEOC’s regulatory language, Congress provided that “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”


The Hardison case concerned a dispute that arose during the interval between the issuance of the EEOC’s “undue hardship” regulation and the 1972 amendment to Title VII. In 1967, Larry Hardison was hired as a clerk at the Stores Department in the Kansas City base of Trans World Airlines (TWA). The Stores Department was responsible for providing parts needed to repair and maintain aircraft. It played an “essential role” and operated “24 hours per day, 365 days per year.” After taking this job, Hardison underwent a religious conversion. He began to observe the Sabbath by absenting himself from work from sunset on Friday to sunset on Saturday, and this conflicted with his work schedule. The problem was solved for a time when Hardison, who worked in Building 1, switched to the night shift, but it resurfaced when he sought and obtained a transfer to the day shift in Building 2 so that he could spend evenings with his wife. In that new building, he did not have enough seniority to avoid work during his Sabbath. Attempts at accommodation failed, and he was eventually “discharged on grounds of insubordination.”

Hardison sued TWA and his union, the International Association of Machinists and Aerospace Workers (IAM). The Eighth Circuit found that reasonable accommodations were available, and it rejected the defendants’ Establishment Clause arguments.

Both TWA and IAM then filed petitions for certiorari, with TWA’s lead petition asking this Court to decide whether the 1972 amendment of Title VII violated the Establishment Clause as applied in the decision below, particularly insofar as that decision had approved an accommodation that allegedly overrode seniority rights granted by the relevant collective bargaining agreement. The Court granted both petitions. . . .

Despite the prominence of the Establishment Clause in the briefs submitted by the parties and their amici, constitutional concerns played no on-stage role in the Court’s opinion, which focused instead on seniority rights. The opinion stated that “the principal issue on which TWA and the union came to this Court” was whether Title VII “require[s] an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices.” The Court held that Title VII imposed no such requirement. This conclusion, the Court found, was “supported by the fact that seniority systems are afforded special treatment under Title VII itself.” It noted that Title VII expressly provides special protection for “‘bona fide seniority . . . system[s],’” and it cited precedent reading the statute “‘to make clear that the routine application of a bona fide seniority system [is] not . . . unlawful under Title VII.’” Invoking these authorities, the Court found that the statute did not require an accommodation that involuntarily deprived employees of seniority rights.

Applying this interpretation of Title VII and disagreeing with the Eighth Circuit’s evaluation of the factual record, the Court identified no way in which TWA, without violating seniority rights, could have feasibly accommodated Hardison’s request for an exemption from work on his Sabbath. The Court found that not enough co-workers were willing to take Hardison’s shift voluntarily, that compelling them to do so would have violated their seniority rights, and that leaving the Stores Department short-handed would have adversely affected its “essential” mission. [Justice Alito discusses possible accommodations proposed by the Hardison dissent.]

In the briefs and at argument, little space was devoted to the question of determining when increased costs amount to an “undue hardship” under the statute, but a single, but oft-quoted, sentence in the opinion of the Court, if taken literally, suggested that even a pittance might be too much for an employer to be forced to endure. The line read as follows: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”

Although this line would later be viewed by many lower courts as the authoritative interpretation of the statutory term “undue hardship,” it is doubtful that it was meant to take on that large role. In responding to Justice Marshall’s dissent, the Court described the governing standard quite differently, stating three times that an accommodation is not required when it entails “substantial” “costs” or “expenditures.” This formulation suggests that an employer may be required to bear costs and make expenditures that are not “substantial.” Of course, there is a big difference between costs and expenditures that are not “substantial” and those that are “de minimis,” which is to say, so “very small or trifling” that that they are not even worth noticing.

Ultimately, then, it is not clear that any of the possible accommodations would have actually solved Hardison’s problem without transgressing seniority rights. The Hardison Court was very clear that those rights were off-limits. Its guidance on “undue hardship” in situations not involving seniority rights is much less clear.


Even though Hardison’s reference to “de minimis” was undercut by conflicting language and was fleeting in comparison to its discussion of the “principal issue” of seniority rights, lower courts have latched on to “de minimis” as the governing standard.

To be sure, as the Solicitor General notes, some lower courts have understood that the protection for religious adherents is greater than “more than . . . de minimis” might suggest when read in isolation. But a bevy of diverse religious organizations has told this Court that the de minimis test has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market.

The EEOC has also accepted Hardison as prescribing a “‘more than a de minimis cost’” test, but has tried in some ways to soften its impact. It has specifically cautioned (as has the Solicitor General in this case) against extending the phrase to cover such things as the “administrative costs” involved in reworking schedules, the “infrequent” or temporary “payment of premium wages for a substitute,” and “voluntary substitutes and swaps” when they are not contrary to a “bona fide seniority system.”

Nevertheless, some courts have rejected even the EEOC’s gloss on “de minimis.” And in other cases, courts have rejected accommodations that the EEOC’s guidelines consider to be ordinarily required, such as the relaxation of dress codes and coverage for occasional absences.

Members of this Court have warned that, if the de minimis rule represents the holding of Hardison, the decisionmight have to be reconsidered. Four years ago, the Solicitor General—joined in its brief by the EEOC—likewise took that view.

Today, the Solicitor General disavows its prior position that Hardison should be overruled—but only on the understanding that Hardison does not compel courts to read the “more than de minimis” standard “literally” or in a manner that undermines Hardison’s references to “substantial” cost. With the benefit of comprehensive briefing and oral argument, we agree.


We hold that showing “more than a de minimis cost,” as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII. Hardison cannot be reduced to that one phrase. In describing an employer’s “undue hardship” defense, Hardison referred repeatedly to “substantial” burdens, and that formulation better explains the decision. We therefore, like the parties, understand Hardison to mean that “undue hardship” is shown when a burden is substantial in the overall context of an employer’s business. This fact-specific inquiry comports with both Hardison and the meaning of “undue hardship” in ordinary speech.


As we have explained, we do not write on a blank slate in determining what an employer must prove to defend a denial of a religious accommodation, but we think it reasonable to begin with Title VII’s text. After all, as we have stressed over and over again in recent years, statutory interpretation must “begi[n] with,” and ultimately heed, what a statute actually says. Here, the key statutory term is “undue hardship.” In common parlance, a “hardship” is, at a minimum, “something hard to bear.” Other definitions go further. But under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an “excessive” or “unjustifiable” level. The Government agrees, noting that “‘undue hardship means something greater than hardship.’”

When “undue hardship” is understood in this way, it means something very different from a burden that is merely more than de minimis, i.e., something that is “very small or trifling.” So considering ordinary meaning while taking Hardison as a given, we are pointed toward something closer to Hardison’s references to “substantial additional costs” or “substantial expenditures.”

Similarly, while we do not rely on the pre-1972 EEOC decisions described above to define the term, we do observe that these decisions often found that accommodations that entailed substantial costs were required. Nothing in this history plausibly suggests that “undue hardship” in Title VII should be read to mean anything less than its meaning in ordinary use.

In short, no factor discussed by the parties supports reducing Hardison to its “more than a de minimis cost” line.


In this case, both parties agree that the “de minimis” test is not right, but they differ slightly in the alternative language they prefer. Groff likes the phrase “significant difficulty or expense.” The Government, disavowing its prior position that Title VII’s text requires overruling Hardison, points us to Hardison’s repeated references to “substantial expenditures” or “substantial additional costs.” We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

What matters more than a favored synonym for “undue hardship” (which is the actual text) is that courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.”

. . . .


The erroneous de minimis interpretation of Hardison may have had the effect of leading courts to pay insufficientattention to what the actual text of Title VII means with regard to several recurring issues. Since we are now brushing away that mistaken view of Hardison’s holding, clarification of some of those issues—in line with the parties’ agreement in this case—is in order.

First, on the second question presented, both parties agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affec[t] the conduct of the business.” So an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business, but a court cannot stop its analysis without examining whether that further logical step is shown in a particular case.

On this point, the Solicitor General took pains to clarify that some evidence that occasionally is used to show “impacts” on coworkers is “off the table” for consideration. Specifically, a coworker’s dislike of “religious practice and expression in the workplace” or “the mere fact [of] an accommodation” is not “cognizable to factor into the undue hardship inquiry.” To the extent that this was not previously clear, we agree. An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself.

Second, as the Solicitor General’s authorities underscore, Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. This distinction matters. Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.


Having clarified the Title VII undue-hardship standard, we think it appropriate to leave the context-specific application of that clarified standard to the lower courts in the first instance. The Third Circuit assumed that Hardisonprescribed a “more than a de minimis cost” test, and this may have led the court to dismiss a number of possible accommodations, including those involving the cost of incentive pay, or the administrative costs of coordination with other nearby stations with a broader set of employees. Without foreclosing the possibility that USPS will prevail, we think it appropriate to leave it to the lower courts to apply our clarified context-specific standard, and to decide whether any further factual development is needed.

* * *

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE SOTOMAYOR, with whom JUSTICE JACKSON joins, concurring.

As both parties here agree, the phrase “more than a de minimis cost” from Trans World Airlines v. Hardison was loose language. An employer violates Title VII if it fails “to reasonably accommodate” an employee’s religious observance or practice, unless the employer demonstrates that accommodation would result in “undue hardship on the conduct of the employer’s business.” The statutory standard is “undue hardship,” not trivial cost.

Hardison, however, cannot be reduced to its “de minimis” language. Instead, that case must be understood in light of its facts and the Court’s reasoning. The Hardison Court concluded that the plaintiff ’s proposed accommodation would have imposed an undue hardship on the conduct of the employer’s business because the accommodation would have required the employer either to deprive other employees of their seniority rights under a collective-bargaining agreement, or to incur substantial additional costs in the form of lost efficiency or higher wages. The Equal Employment Opportunity Commission has interpreted Title VII’s undue-hardship standard in this way for seven consecutive Presidential administrations, from President Reagan to President Biden.

Petitioner Gerald Groff asks this Court to overrule Hardison and to replace it with a “significant difficulty or expense” standard. The Court does not do so. That is a wise choice because stare decisis has “enhanced force” in statutory cases. Congress is free to revise this Court’s statutory interpretations. The Court’s respect for Congress’s decision not to intervene promotes the separation of powers by requiring interested parties to resort to the legislative rather than the judicial process to achieve their policy goals. This justification for statutory stare decisis is especially strong here because“Congress has spurned multiple opportunities to reverse [Hardison]—openings as frequent and clear as this Court ever sees.” Moreover, in the decades since Hardison was decided, Congress has revised Title VII multiple times in response to other decisions of this Court, yet never in response to Hardison.

Groff also asks the Court to decide that Title VII requires the United States Postal Service to show “undue hardship to [its] business,” not to Groff ’s co-workers. The Court, however, recognizes that Title VII requires “undue hardship on the conduct of the employer’s business.” Because the “conduct of [a] business” plainly includes the management and performance of the business’s employees, undue hardship on the conduct of a business may include undue hardship on the business’s employees. There is no basis in the text of the statute, let alone in economics or common sense, to conclude otherwise. Indeed, for many businesses, labor is more important to the conduct of the business than any other factor.

To be sure, some effects on co-workers will not constitute “undue hardship” under Title VII. For example, animus toward a protected group is not a cognizable “hardship” under any antidiscrimination statute. In addition, some hardships, such as the labor costs of coordinating voluntary shift swaps, are not “undue” because they are too insubstantial. Nevertheless, if there is an undue hardship on “the conduct of the employer’s business,” then such hardship is sufficient, even if it consists of hardship on employees. With these observations, I join the opinion of the Court.

Employment Division v. Smith

494 U.S. 872 (1990)

Justice SCALIA delivered the opinion of the Court.

This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.


Oregon law prohibits the knowing or intentional possession of a “controlled substance” unless the substance has been prescribed by a medical practitioner. The law defines “controlled substance” . . . [to include] the drug peyote, a hallucinogen derived from the plant Lophophorawilliamsii Lemaire.

Respondents Alfred Smith and Galen Black were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members. When respondents applied to petitioner Employment Division for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related “misconduct.” . . .


. . . The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment, see Cantwell v. Connecticut, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all “governmental regulation of religious beliefs as such.”The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.

But the “exercise of religion” often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of “statues that are to be used for worship purposes,” or to prohibit bowing down before a golden calf.

Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as “prohibiting the free exercise [of religion]” by those citizens who believe support of organized government to be sinful than it is to regard the same tax as “abridging the freedom . . . of the press” of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that, if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

Our decisions reveal that the latter reading is the correct one. We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis:

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

We first had occasion to assert that principle in Reynolds v. United States, where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said,

are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

In Prince v. Massachusetts, we held that a mother could be prosecuted under the child labor laws for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in “excluding [these children] from doing there what no other children may do.” In Braunfeld v. Brown, we upheld Sunday closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, we sustained the military selective service system against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds.

Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual’s religion was United States v. Lee. There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs. We rejected the claim that an exemption was constitutionally required. There would be no way, we observed, to distinguish the Amish believer's objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes. . . .

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, to direct the education of their children, see Wisconsin v. Yoder, (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).

Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion, cf. Wooley v. Maynard, (invalidating compelled display of a license plate slogan that offended individual religious beliefs); West Virginia Board of Education v. Barnette (invalidating compulsory flag salute statute challenged by religious objectors). And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts v. United States Jaycees (“An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed.”).

The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls. . . .


Respondents argue that, even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner.Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. Applying that test, we have, on three occasions, invalidated state unemployment compensation rules that conditioned the availability of benefits upon an applicant's willingness to work under conditions forbidden by his religion. We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied. In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all. In Bowen v. Roy, we declined to apply Sherbert analysis to a federal statutory scheme that required benefit applicants and recipients to provide their Social Security numbers. The plaintiffs in that case asserted that it would violate their religious beliefs to obtain and provide a Social Security number for their daughter. We held the statute's application to the plaintiffs valid regardless of whether it was necessary to effectuate a compelling interest. In Lyng v. Northwest Indian Cemetery Protective Assn., we declined to apply Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by several Native American Tribes, even though it was undisputed that the activities “could have devastating effects on traditional Indian religious practices.” In Goldman v. Weinberger, we rejected application of the Sherbert test to military dress regulations that forbade the wearing of yarmulkes. In O’Lone v. Estate of Shabazz, we sustained, without mentioning the Sherbert test, a prison's refusal to excuse inmates from work requirements to attend worship services.

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. As a plurality of the Court noted in Roy, a distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circ*mstances behind an applicant’s unemployment:

The statutory conditions [in Sherbert and Thomas] provided that a person was not eligible for unemployment compensation benefits if, ‘without good cause,’ he had quit work or refused available work. The ‘good cause’ standard created a mechanism for individualized exemptions.

As the plurality pointed out in Roy, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason.

Whether or not the decisions are that limited, they at least have nothing to do with an across-the-board criminal prohibition on a particular form of conduct. Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws, we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become a law unto himself”—contradicts both constitutional tradition and common sense.

The “compelling government interest” requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, or before the government may regulate the content of speech, is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields—equality of treatment, and an unrestricted flow of contending speech—are constitutional norms; what it would produce here—a private right to ignore generally applicable laws—is a constitutional anomaly.

Nor is it possible to limit the impact of respondents’ proposal by requiring a “compelling state interest” only when the conduct prohibited is “central” to the individual’s religion.It is no more appropriate for judges to determine the “centrality” of religious beliefs before applying a “compelling interest” test in the free exercise field than it would be for them to determine the “importance” of ideas before applying the “compelling interest” test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is “central” to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable “business of evaluating the relative merits of differing religious claims.”As we reaffirmed only last Term [in Hernandez v. Commissioner],

[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretation of those creeds.

Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.

If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld v. Brown, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service to the payment of taxes; to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

* * * *

Because respondents’ ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug. The decision of the Oregon Supreme Court is accordingly reversed.

Justice O'CONNOR, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join as to Parts I and II, concurring in the judgment.

Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today’s holding dramatically departs from well settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty. . . .


The Court today extracts from our long history of free exercise precedents the single categorical rule that “if prohibiting the exercise of religion is merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Indeed, the Court holds that, where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply. To reach this sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct.


The Free Exercise Clause of the First Amendment commands that “Congress shall make no law . . . prohibiting the free exercise [of religion].” In Cantwell v. Connecticut, we held that this prohibition applies to the States by incorporation into the Fourteenth Amendment and that it categorically forbids government regulation of religious beliefs. As the Court recognizes, however, the “free exercise” of religion often, if not invariably, requires the performance of (or abstention from) certain acts. [We observed in Wisconsin v. Yoder that] “belief and action cannot be neatly confined in logic-tight compartments.” Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause.

The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as that prohibition is generally applicable. But a law that prohibits certain conduct—conduct that happens to be an act of worship for someone—manifestly does prohibit that person's free exercise of his religion. A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons. It is difficult to deny that a law that prohibits religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns.

The Court responds that generally applicable laws are “one large step” removed from laws aimed at specific religious practices. The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice. . . .

To say that a person’s right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. Instead, we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest. The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests “of the highest order.”

The Court attempts to support its narrow reading of the Clause by claiming that “[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” But as the Court later notes, as it must, in cases such as Cantwell and Yoder, we have in fact interpreted the Free Exercise Clause to forbid application of a generally applicable prohibition to religiously motivated conduct. Indeed, in Yoder we expressly rejected the interpretation the Court now adopts:

[O]ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . .

. . . A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion.

The Court endeavors to escape from our decisions in Cantwell and Yoder by labeling them “hybrid” decisions, but there is no denying that both cases expressly relied on the Free Exercise Clause, and that we have consistently regarded those cases as part of the mainstream of our free exercise jurisprudence. Moreover, in each of the other cases cited by the Court to support its categorical rule, we rejected the particular constitutional claims before us only after carefully weighing the competing interests. That we rejected the free exercise claims in those cases hardly calls into question the applicability of First Amendment doctrine in the first place. Indeed, it is surely unusual to judge the vitality of a constitutional doctrine by looking to the win-loss record of the plaintiffs who happen to come before us.


Respondents, of course, do not contend that their conduct is automatically immune from all governmental regulation simply because it is motivated by their sincere religious beliefs. The Court’s rejection of that argument might therefore be regarded as merely harmless dictum. Rather, respondents invoke our traditional compelling interest test to argue that the Free Exercise Clause requires the State to grant them a limited exemption from its general criminal prohibition against the possession of peyote. The Court today, however, denies them even the opportunity to make that argument, concluding that “the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [compelling interest] test inapplicable to” challenges to general criminal prohibitions.

In my view, however, the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community. As we explained in Thomas:

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.

A State that makes criminal an individual’s religiously motivated conduct burdens that individual's free exercise of religion in the severest manner possible, for it “results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.” I would have thought it beyond argument that such laws implicate free exercise concerns.

Indeed, we have never distinguished between cases in which a State conditions receipt of a benefit on conduct prohibited by religious beliefs and cases in which a State affirmatively prohibits such conduct. The Sherbert compelling interest test applies in both kinds of cases. As I noted in Bowen v. Roy:

The fact that the underlying dispute involves an award of benefits rather than an exaction of penalties does not grant the Government license to apply a different version of the Constitution. . . .

. . . The fact that appellees seek exemption from a precondition that the Government attaches to an award of benefits does not, therefore, generate a meaningful distinction between this case and one where appellees seek an exemption from the Government's imposition of penalties upon them.

I would reaffirm that principle today: a neutral criminal law prohibiting conduct that a State may legitimately regulate is, if anything, more burdensome than a neutral civil statute placing legitimate conditions on the award of a state benefit.

Legislatures, of course, have always been “left free to reach actions which were in violation of social duties or subversive of good order.” Yet because of the close relationship between conduct and religious belief, “[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.” Once it has been shown that a government regulation or criminal prohibition burdens the free exercise of religion, we have consistently asked the Government to demonstrate that unbending application of its regulation to the religious objector “is essential to accomplish an overriding governmental interest” or represents “the least restrictive means of achieving some compelling state interest.” To me, the sounder approach—the approach more consistent with our role as judges to decide each case on its individual merits—is to apply this test in each case to determine whether the burden on the specific plaintiffs before us is constitutionally significant, and whether the particular criminal interest asserted by the State before us is compelling. Even if, as an empirical matter, a government's criminal laws might usually serve a compelling interest in health, safety, or public order, the First Amendment at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim. Given the range of conduct that a State might legitimately make criminal, we cannot assume, merely because a law carries criminal sanctions and is generally applicable, that the First Amendment never requires the State to grant a limited exemption for religiously motivated conduct. . . .

The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. . . . The Court’s parade of horribles not only fails as a reason for discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.

Finally, the Court today suggests that the disfavoring of minority religions is an “unavoidable consequence” under our system of government, and that accommodation of such religions must be left to the political process. In my view, however, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah’s Witnesses and the Amish. Indeed, the words of Justice Jackson in West Virginia Board of Education v. Barnette (overruling Minersville School District v. Gobitis) are apt:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The compelling interest test reflects the First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic society. For the Court to deem this command a “luxury,” is to denigrate “[t]he very purpose of a Bill of Rights.”


The Court’s holding today not only misreads settled First Amendment precedent; it appears to be unnecessary to this case. I would reach the same result applying our established free exercise jurisprudence.


There is no dispute that Oregon’s criminal prohibition of peyote places a severe burden on the ability of respondents to freely exercise their religion. Peyote is a sacrament of the Native American Church, and is regarded as vital to respondents’ ability to practice their religion.

Under Oregon law, as construed by that State’s highest court, members of the Native American Church must choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal prosecution. That choice is, in my view, more than sufficient to trigger First Amendment scrutiny.

There is also no dispute that Oregon has a significant interest in enforcing laws that control the possession and use of controlled substances by its citizens. As we recently noted, drug abuse is “one of the greatest problems affecting the health and welfare of our population” and thus “one of the most serious problems confronting our society today.” Indeed, under federal law, peyote is specifically regulated as a Schedule I controlled substance, which means that Congress has found that it has a high potential for abuse, that there is no currently accepted medical use, and that there is a lack of accepted safety for use of the drug under medical supervision.In light of our recent decisions holding that the governmental interests in the collection of income tax, a comprehensive social security system, and military conscription, are compelling, respondents do not seriously dispute that Oregon has a compelling interest in prohibiting the possession of peyote by its citizens.


Thus, the critical question in this case is whether exempting respondents from the State’s general criminal prohibition “will unduly interfere with fulfillment of the governmental interest.” Although the question is close, I would conclude that uniform application of Oregon’s criminal prohibition is “essential to accomplish,” its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance. Oregon’s criminal prohibition represents that State’s judgment that the possession and use of controlled substances, even by only one person, is inherently harmful and dangerous. Because the health effects caused by the use of controlled substances exist regardless of the motivation of the user, the use of such substances, even for religious purposes, violates the very purpose of the laws that prohibit them.Moreover, in view of the societal interest in preventing trafficking in controlled substances, uniform application of the criminal prohibition at issue is essential to the effectiveness of Oregon’s stated interest in preventing any possession of peyote.

For these reasons, I believe that granting a selective exemption in this case would seriously impair Oregon’s compelling interest in prohibiting possession of peyote by its citizens. Under such circ*mstances, the Free Exercise Clause does not require the State to accommodate respondents’ religiously motivated conduct. Unlike in Yoder, where we noted that

[t]he record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society,

religious exemption in this case would be incompatible with the State's interest in controlling use and possession of illegal drugs.

Respondents contend that any incompatibility is belied by the fact that the Federal Government and several States provide exemptions for the religious use of peyote. But other governments may surely choose to grant an exemption without Oregon, with its specific asserted interest in uniform application of its drug laws, being required to do so by the First Amendment. Respondents also note that the sacramental use of peyote is central to the tenets of the Native American Church, but I agree with the Court that because “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,” our determination of the constitutionality of Oregon’s general criminal prohibition cannot, and should not, turn on the centrality of the particular religious practice at issue. This does not mean, of course, that courts may not make factual findings as to whether a claimant holds a sincerely held religious belief that conflicts with, and thus is burdened by, the challenged law. The distinction between questions of centrality and questions of sincerity and burden is admittedly fine, but it is one that is an established part of our free exercise doctrine, and one that courts are capable of making. See Tony and Susan Alamo Foundation v. Secretary of Labor.

I would therefore adhere to our established free exercise jurisprudence and hold that the State in this case has a compelling interest in regulating peyote use by its citizens, and that accommodating respondents' religiously motivated conduct “will unduly interfere with fulfillment of the governmental interest.” Accordingly, I concur in the judgment of the Court.

Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.

Until today, I thought this was a settled and inviolate principle of this Court’s First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a “constitutional anomaly.” As carefully detailed in Justice O’CONNOR’s concurring opinion, the majority is able to arrive at this view only by mischaracterizing this Court’s precedents. The Court discards leading free exercise cases such as Cantwell v. Connecticut and Wisconsin v. Yoder as “hybrid.” The Court views traditional free exercise analysis as somehow inapplicable to criminal prohibitions (as opposed to conditions on the receipt of benefits), and to state laws of general applicability (as opposed, presumably, to laws that expressly single out religious practices). The Court cites cases in which, due to various exceptional circ*mstances, we found strict scrutiny inapposite, to hint that the Court has repudiated that standard altogether. In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country’s drug crisis has generated.

This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a “luxury” that a well-ordered society cannot afford, and that the repression of minority religions is an “unavoidable consequence of democratic government.” I do not believe the Founders thought their dearly bought freedom from religious persecution a “luxury,” but an essential element of liberty—and they could not have thought religious intolerance “unavoidable,” for they drafted the Religion Clauses precisely in order to avoid that intolerance.

=For these reasons, I agree with Justice O’CONNOR’s analysis of the applicable free exercise doctrine, and I join parts I and II of her opinion. As she points out, “the critical question in this case is whether exempting respondents from the State’s general criminal prohibition will unduly interfere with fulfillment of the governmental interest.” I do disagree, however, with her specific answer to that question.


In weighing respondents’ clear interest in the free exercise of their religion against Oregon’s asserted interest in enforcing its drug laws, it is important to articulate in precise terms the state interest involved. It is not the State’s broad interest in fighting the critical “war on drugs” that must be weighed against respondents’ claim, but the State’s narrow interest in refusing to make an exception for the religious, ceremonial use of peyote.Failure to reduce the competing interests to the same plane of generality tends to distort the weighing process in the State’s favor.

The State’s interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill any compelling interest if it does not, in fact, attempt to enforce that prohibition. In this case, the State actually has not evinced any concrete interest in enforcing its drug laws against religious users of peyote. Oregon has never sought to prosecute respondents, and does not claim that it has made significant enforcement efforts against other religious users of peyote. The State’s asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition. But a government interest in “symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs,” cannot suffice to abrogate the constitutional rights of individuals.

Similarly, this Court’s prior decisions have not allowed a government to rely on mere speculation about potential harms, but have demanded evidentiary support for a refusal to allow a religious exception. In this case, the State’s justification for refusing to recognize an exception to its criminal laws for religious peyote use is entirely speculative.

The State proclaims an interest in protecting the health and safety of its citizens from the dangers of unlawful drugs. It offers, however, no evidence that the religious use of peyote has ever harmed anyone. The factual findings of other courts cast doubt on the State's assumption that religious use of peyote is harmful.

The fact that peyote is classified as a Schedule I controlled substance does not, by itself, show that any and all uses of peyote, in any circ*mstance, are inherently harmful and dangerous. The Federal Government, which created the classifications of unlawful drugs from which Oregon's drug laws are derived, apparently does not find peyote so dangerous as to preclude an exemption for religious use. Moreover, other Schedule I drugs have lawful uses.

The carefully circ*mscribed ritual context in which respondents used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs. The Native American Church’s internal restrictions on, and supervision of, its members’ use of peyote substantially obviate the State’s health and safety concerns.

Moreover, just as in Yoder, the values and interests of those seeking a religious exemption in this case are congruent, to a great degree, with those the State seeks to promote through its drug laws. Not only does the Church’s doctrine forbid nonreligious use of peyote; it also generally advocates self-reliance, familial responsibility, and abstinence from alcohol. There is considerable evidence that the spiritual and social support provided by the Church has been effective in combatting the tragic effects of alcoholism on the Native American population. Two noted experts on peyotism, Dr. Omer C. Stewart and Dr. Robert Bergman, testified by affidavit to this effect on behalf of respondent Smith before the Employment Appeal Board. Far from promoting the lawless and irresponsible use of drugs, Native American Church members' spiritual code exemplifies values that Oregon's drug laws are presumably intended to foster.

The State also seeks to support its refusal to make an exception for religious use of peyote by invoking its interest in abolishing drug trafficking. There is, however, practically no illegal traffic in peyote. [The dissent quotes a DEA Order indicating that the total amount of peyote seized and analyzed by federal authorities between 1980 and 1987 was 19.4 pounds, while the total amount of marijuana seized during that period was over 15 million pounds.] . . . Peyote simply is not a popular drug; its distribution for use in religious rituals has nothing to do with the vast and violent traffic in illegal narcotics that plagues this country.

Finally, the State argues that granting an exception for religious peyote use would erode its interest in the uniform, fair, and certain enforcement of its drug laws. The State fears that, if it grants an exemption for religious peyote use, a flood of other claims to religious exemptions will follow. It would then be placed in a dilemma, it says, between allowing a patchwork of exemptions that would hinder its law enforcement efforts, and risking a violation of the Establishment Clause by arbitrarily limiting its religious exemptions. This argument, however, could be made in almost any free exercise case. This Court, however, consistently has rejected similar arguments in past free exercise cases, and it should do so here as well.

The State’s apprehension of a flood of other religious claims is purely speculative. Almost half the States, and the Federal Government, have maintained an exemption for religious peyote use for many years, and apparently have not found themselves overwhelmed by claims to other religious exemptions. Allowing an exemption for religious peyote use would not necessarily oblige the State to grant a similar exemption to other religious groups. The unusual circ*mstances that make the religious use of peyote compatible with the State’s interests in health and safety and in preventing drug trafficking would not apply to other religious claims. Some religions, for example, might not restrict drug use to a limited ceremonial context, as does the Native American Church. Some religious claims involve drugs such as marijuana and heroin, in which there is significant illegal traffic, with its attendant greed and violence, so that it would be difficult to grant a religious exemption without seriously compromising law enforcement efforts. That the State might grant an exemption for religious peyote use, but deny other religious claims arising in different circ*mstances, would not violate the Establishment Clause. Though the State must treat all religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the “compelling interest” test to all free exercise claims, not by reaching uniform results as to all claims. A showing that religious peyote use does not unduly interfere with the State's interests is “one that probably few other religious groups or sects could make”; this does not mean that an exemption limited to peyote use is tantamount to an establishment of religion. . . .

City of Boerne v. Flores

521 U.S. 507 (1997)

Justice KENNEDY delivered the opinion of the Court.

A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA or Act). The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress’ power.


Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church’s structure replicates the mission style of the region’s earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.

The Boerne City Council passed an ordinance authorizing the city’s Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district.

Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application.


Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith. There we considered a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. [Justice Kennedy then recounted the facts surrounding Smith and the Court’s reasoning in refusing to apply to Sherbert test to that particular case.]

Many Members of Congress criticized the Court’s reasoning in Smith, and this disagreement resulted in the passage of RFRA. Congress announced:

(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

(2) laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

(3) governments should not substantially burden religious exercise without compelling justification;

(4) in Employment Division v. Smith, the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

The Act’s stated purposes are:

(1) to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

RFRA prohibits “[g]overnment” from “substantially burden[ing]” a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Act’s mandate applies to any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States,” as well as to any “State, or ... subdivision of a State.” The Act’s universal coverage is confirmed in Section 2000bb–3(a), under which RFRA “applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA’s enactment].” In accordance with RFRA’s usage of the term, we shall use “state law” to include local and municipal ordinances.


Under our Constitution, the Federal Government is one of enumerated powers. M’Culloch v. Maryland. The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the “powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison.

Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA’s provisions, those which impose its requirements on the States. . . .The parties disagree over whether RFRA is a proper exercise of Congress’s § 5 power “to enforce” by “appropriate legislation” the constitutional guarantee that no State shall deprive any person of “life, liberty, or property, without due process of law” nor deny any person “equal protection of the laws.”

[The Court then concluded that RFRA exceeded Congress’s power under § 5 of the Fourteenth Amendment.]

It is for Congress in the first instance to “determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” and its conclusions are entitled to much deference. Congress’ discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act’s constitutionality is reversed.

Justice SCALIA, with whom Justice STEVENS joins, concurring in part.

I write to respond briefly to the claim of Justice O’CONNOR’s dissent (hereinafter “the dissent”) that historical materials support a result contrary to the one reached in Employment Div., Dept. of Human Resources of Oregon v. Smith. We held in Smith that the Constitution’s Free Exercise Clause “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”The material that the dissent claims is at odds with Smith either has little to say about the issue or is in fact more consistent with Smith than with the dissent’s interpretation of the Free Exercise Clause. The dissent’s extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that “constitutionally compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause.” McConnell, The Origins and Historical Understanding of Free Exercise of Religion.

The dissent first claims that Smith’s interpretation of the Free Exercise Clause departs from the understanding reflected in various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights. But the protections afforded by those enactments are in fact more consistent with Smith’s interpretation of free exercise than with the dissent’s understanding of it. The Free Exercise Clause, the dissent claims, “is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law”; thus, even neutral laws of general application may be invalid if they burden religiously motivated conduct. However, the early “free exercise” enactments cited by the dissent protect only against action that is taken “for” or “in respect of” religion (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken “on account of” religion (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or “discriminat[ory]” action; or, finally (and unhelpfully for purposes of interpreting “free exercise” in the Federal Constitution), action that interferes with the “free exercise” of religion (Maryland Act Concerning Religion of 1649 and Georgia Constitution).

Assuming, however, that the affirmative protection of religion accorded by the early “free exercise” enactments sweeps as broadly as the dissent’s theory would require, those enactments do not support the dissent’s view, since they contain “provisos” that significantly qualify the affirmative protection they grant. According to the dissent, the “provisos” support its view because they would have been “superfluous” if “the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience.” I disagree. In fact, the most plausible reading of the “free exercise” enactments (if their affirmative provisions are read broadly, as the dissent’s view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct. The “provisos” in the enactments negate a license to act in a manner “unfaithfull to the Lord Proprietary” (Maryland Act Concerning Religion of 1649), or “behav[e]” in other than a “peaceabl[e] and quie[t]” manner (Rhode Island Charter of 1663), or “disturb the public peace” (New Hampshire Constitution), or interfere with the “peace [and] safety of th [e] State” (New York, Maryland, and Georgia Constitutions), or “demea[n]” oneself in other than a “peaceable and orderly manner” (Northwest Ordinance of 1787). At the time these provisos were enacted, keeping “peace” and “order” seems to have meant, precisely, obeying the laws. “[E]very breach of a law is against the peace.” Queen v. Lane. Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of “peace”: “8. Public tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace.” This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right “to do only what was not lawfully prohibited,” West, The Case Against a Right to Religion–Based Exemptions. “Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions.” And while, under this interpretation, these early “free exercise” enactments support the Court’s judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O’CONNOR, or any of Smith’s other critics. No one in that camp, to my knowledge, contends that their favored “compelling state interest” test conforms to any possible interpretation of “breach of peace and order”—i.e., that only violence or force, or any other category of action (more limited than “violation of law”) which can possibly be conveyed by the phrase “peace and order,” justifies state prohibition of religiously motivated conduct.

Apart from the early “free exercise” enactments of Colonies, States, and Territories, the dissent calls attention to those bodies’, and the Continental Congress’s, legislative accommodation of religious practices prior to ratification of the Bill of Rights. This accommodation—which took place both before and after enactment of the state constitutional protections of religious liberty—suggests (according to the dissent) that “the drafters and ratifiers of the First Amendment . . . assumed courts would apply the Free Exercise Clause similarly.” But that legislatures sometimes (though not always) found it “appropriate,” to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause. As we explained in Smith, “to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required.” “Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process.”

The dissent’s final source of claimed historical support consists of statements of certain of the Framers in the context of debates about proposed legislative enactments or debates over general principles (not in connection with the drafting of State or Federal Constitutions). Those statements are subject to the same objection as was the evidence about legislative accommodation: There is no reason to think they were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable. Thus, for example, the pamphlet written by James Madison opposing Virginia’s proposed general assessment for support of religion does not argue that the assessment would violate the “free exercise” provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators. Likewise, the letter from George Washington to the Quakers by its own terms refers to Washington’s “wish and desire” that religion be accommodated, not his belief that existing constitutional provisions required accommodation. These and other examples offered by the dissent reflect the speakers’ views of the “proper” relationship between government and religion, but not their views (at least insofar as the content or context of the material suggests) of the constitutionally required relationship. The one exception is the statement by Thomas Jefferson that he considered “the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises,” but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent.

It seems to me that the most telling point made by the dissent is to be found, not in what it says, but in what it fails to say. Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none—and to my knowledge, and to the knowledge of the academic defenders of the dissent’s position, none exists. The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777 required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. Even this lone case is weak authority, not only because it comes from a minor court, but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court’s simply modifying the common-law rules of evidence to recognize such a privilege. On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent’s view.

I have limited this response to the new items of “historical evidence” brought forward by today’s dissent. (The dissent’s claim that “[b]efore Smith, our free exercise cases were generally in keeping” with the dissent’s view is adequately answered in Smith itself.) The historical evidence marshalled by the dissent cannot fairly be said to demonstrate the correctness of Smith; but it is more supportive of that conclusion than destructive of it. And, to return to a point I made earlier, that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith. The dissent’s approach has, of course, great popular attraction. Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether (as the dissent apparently believes) church construction will be exempt from zoning laws? The historical evidence put forward by the dissent does nothing to undermine the conclusion we reached in Smith: It shall be the people.

Justice O’CONNOR, with whom Justice BREYER joins except as to the first paragraph of Part I, dissenting.

I dissent from the Court’s disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act of 1993 (RFRA) is a proper exercise of Congress’ power to enforce § 5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided, and I would use this case to reexamine the Court’s holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.


The Court’s analysis of whether RFRA is a constitutional exercise of Congress’ § 5 power, set forth in Part III–B of its opinion, is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims. In Smith, five Members of this Court—without briefing or argument on the issue—interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual’s religious beliefs, so long as the prohibition is generally applicable. Contrary to the Court’s holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct—regardless whether it was specifically targeted at religion or applied generally—we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest.

The Court’s rejection of this principle in Smith is supported neither by precedent nor, as discussed below, by history. The decision has harmed religious liberty. For example, a Federal District Court, in reliance on Smith, ruled that the Free Exercise Clause was not implicated where Hmong natives objected on religious grounds to their son’s autopsy, conducted pursuant to a generally applicable state law. Yang v. Sturner (D.R.I. 1990). The Court of Appeals for the Eighth Circuit held that application of a city’s zoning laws to prevent a church from conducting services in an area zoned for commercial uses raised no free exercise concerns, even though the city permitted secular not-for-profit organizations in that area. Cornerstone Bible Church v. Hastings (1991); see also Rector of St. Bartholomew’s Church v. City of New York (C.A.2 1990) (no free exercise claim where city’s application of facially neutral landmark designation law “drastically restricted the Church’s ability to raise revenue to carry out its various charitable and ministerial programs”); State v. Hershberger (Minn.1990) (Free Exercise Clause provided no basis for exempting an Amish farmer from displaying a bright orange triangle on his buggy, to which the farmer objected on religious grounds, even though the evidence showed that some other material would have served the State’s purpose equally well). These cases demonstrate that lower courts applying Smith no longer find necessary a searching judicial inquiry into the possibility of reasonably accommodating religious practice.

I believe that we should reexamine our holding in Smith, and do so in this very case. In its place, I would return to a rule that requires government to justify any substantial burden on religiously motivated conduct by a compelling state interest and to impose that burden only by means narrowly tailored to achieve that interest.


I shall not restate what has been said in other opinions, which have demonstrated that Smith is gravely at odds with our earlier free exercise precedents. Rather, I examine here the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clause—an inquiry the Court in Smith did not undertake. We have previously recognized the importance of interpreting the Religion Clauses in light of their history. Lynch v. Donnelly (1984) (“The Court’s interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees”); School Dist. of Abington Township v. Schempp (1963).

The historical evidence casts doubt on the Court’s current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre-Smith jurisprudence.


The original Constitution, drafted in 1787 and ratified by the States in 1788, had no provisions safeguarding individual liberties, such as freedom of speech or religion. Federalists, the chief supporters of the new Constitution, took the view that amending the Constitution to explicitly protect individual freedoms was superfluous, since the rights that the amendments would protect were already completely secure. See, e.g., 1 Annals of Congress 440 (remarks of James Madison, June 8, 1789). Moreover, they feared that guaranteeing certain civil liberties might backfire, since the express mention of some freedoms might imply that others were not protected. According to Alexander Hamilton, a Bill of Rights would even be dangerous, in that by specifying “various exceptions to powers” not granted, it “would afford a colorable pretext to claim more than were granted.” The Federalist No. 84. Anti–Federalists, however, insisted on more definite guarantees. Apprehensive that the newly established Federal Government would overwhelm the rights of States and individuals, they wanted explicit assurances that the Federal Government had no power in matters of personal liberty. T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 194 (1986). Additionally, Baptists and other Protestant dissenters feared for their religious liberty under the new Federal Government and called for an amendment guaranteeing religious freedom.

In the end, legislators acceded to these demands. By December 1791, the Bill of Rights had been added to the Constitution. With respect to religious liberty, the First Amendment provided: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Neither the First Congress nor the ratifying state legislatures debated the question of religious freedom in much detail, nor did they directly consider the scope of the First Amendment’s free exercise protection. It would be disingenuous to say that the Framers neglected to define precisely the scope of the Free Exercise Clause because the words “free exercise” had a precise meaning. L. Levy, Essays on American Constitutional History 173 (1972). As is the case for a number of the terms used in the Bill of Rights, it is not exactly clear what the Framers thought the phrase signified. But a variety of sources supplement the legislative history and shed light on the original understanding of the Free Exercise Clause. These materials suggest that—contrary to Smith—the Framers did not intend simply to prevent the government from adopting laws that discriminated against religion. Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the government’s ability to intrude on religious practice.


The principle of religious “free exercise” and the notion that religious liberty deserved legal protection were by no means new concepts in 1791, when the Bill of Rights was ratified. To the contrary, these principles were first articulated in this country in the Colonies of Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina, in the mid–1600’s. These Colonies, though established as sanctuaries for particular groups of religious dissenters, extended freedom of religion to groups—although often limited to Christian groups—beyond their own. Thus, they encountered early on the conflicts that may arise in a society made up of a plurality of faiths.

The term “free exercise” appeared in an American legal document as early as 1648, when Lord Baltimore extracted from the new Protestant Governor of Maryland and his councilors a promise not to disturb Christians, particularly Roman Catholics, in the “free exercise” of their religion. McConnell, The Origins and Historical Understanding of Free Exercise of Religion (1990) (hereinafter Origins of Free Exercise). Soon after, in 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: “[N]oe person . . . professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof ... nor any way [be] compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Governemt.” Act Concerning Religion of 1649, reprinted in 5 The Founders’ Constitution 49, 50 (P. Kurland & R. Lerner eds.1987) (hereinafter Founders’ Constitution). Rhode Island’s Charter of 1663 used the analogous term “liberty of conscience.” It protected residents from being in any ways “molested, punished, disquieted, or called in question, for any differences in opinione, in matters of religion, and doe not actually disturb the civil peace of our sayd colony.” The Charter further provided that residents may “freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious concernments...; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others.” Charter of Rhode Island and Providence Plantations, 1663, in 8 W. Swindler, Sources and Documents of United States Constitutions 363 (1979) (hereinafter Swindler). Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663.

These documents suggest that, early in our country’s history, several Colonies acknowledged that freedom to pursue one’s chosen religious beliefs was an essential liberty. Moreover, these Colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent “licentiousness.” In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise. Such notions parallel the ideas expressed in our pre-Smith cases—that government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest.


The principles expounded in these early charters re-emerged over a century later in state constitutions that were adopted in the flurry of constitution drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise clause into its constitution. Origins of Free Exercise 1455. These state provisions, which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution’s protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses. The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided:

[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

Similarly, the New Hampshire Constitution of 1784 declared:

Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, ... provided he doth not disturb the public peace, or disturb others, in their religious worship.

The Maryland Declaration of Rights of 1776 read:

[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights.

The religious liberty clause of the Georgia Constitution of 1777 stated:

All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.

In addition to these state provisions, the Northwest Ordinance of 1787—which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress—established a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared:

No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

The language used in these state constitutional provisions and the Northwest Ordinance strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to “free exercise” required, where possible, accommodation of religious practice. If not—and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience—there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be “construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State.” Such a proviso would have been superfluous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.

The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional Convention wrote a constitution containing a Declaration of Rights with a clause on religious liberty. The initial drafter of the clause, George Mason, proposed the following:

That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Mason’s proposal did not go far enough for a 26–year–old James Madison, who had recently completed his studies at the Presbyterian College of Princeton. He objected first to Mason’s use of the term “toleration,” contending that the word implied that the right to practice one’s religion was a governmental favor, rather than an inalienable liberty. Second, Madison thought Mason’s proposal countenanced too much state interference in religious matters, since the “exercise of religion” would have yielded whenever it was deemed inimical to “the peace, happiness, or safety of society.” Madison suggested the provision read instead.

That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered.

Thus, Madison wished to shift Mason’s language of “toleration” to the language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902) (reprint 1970) (noting that Madison objected to the word “toleration” as belonging to “a system where was an established Church, and where a certain liberty of worship was granted, not of right, but of grace”). Additionally, under Madison’s proposal, the State could interfere in a believer’s religious exercise only if the State would otherwise “be manifestly endangered.” In the end, neither Mason’s nor Madison’s language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution’s religious liberty clause. Like the Federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” Virginia Declaration of Rights, Art. XVI (1776), in 10 Swindler 50. For our purposes, however, it is telling that both Mason’s and Madison’s formulations envisioned that, when there was a conflict, a person’s interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant if either had thought the right to free exercise did not include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Mason’s narrower and Madison’s broader notions of the right to religious freedom.


The practice of the Colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice. Unsurprisingly, of course, even in the American Colonies inhabited by people of religious persuasions, religious conscience and civil law rarely conflicted. Most 17th and 18th century Americans belonged to denominations of Protestant Christianity whose religious practices were generally harmonious with colonial law. Curry, The First Freedoms, at 219 (“The vast majority of Americans assumed that theirs was a Christian, i.e. Protestant, country, and they automatically expected that government would uphold the commonly agreed on Protestant ethos and morality”). Moreover, governments then were far smaller and less intrusive than they are today, which made conflict between civil law and religion unusual.

Nevertheless, tension between religious conscience and generally applicable laws, though rare, was not unknown in pre-constitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the Colonies and early States thought that, if an individual’s religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the law’s coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or “swear” allegiance to civil authority. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirement for these individuals. In early decisions, for example, the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56. Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation, and in 1734, it permitted Quakers to qualify to vote by affirmation. By 1789, virtually all of the States had enacted oath exemptions. See Adams & Emmerich 62.

Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military service in the late 1600’s. New York, Massachusetts, Virginia, and New Hampshire followed suit in the mid–1700’s. Origins of Free Exercise 1468. The Continental Congress likewise granted exemption from conscription:

As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles.

Again, this practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practice and civil obligation. Notably, the Continental Congress exempted objectors from conscription to avoid “violence to their consciences,” explicitly recognizing that civil laws must sometimes give way to freedom of conscience.

States and Colonies with established churches encountered a further religious accommodation problem. Typically, these governments required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government-compelled tithes on religious grounds. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments. There are additional examples of early conflicts between civil laws and religious practice that were similarly settled through accommodation of religious exercise. Both North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith.

To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties—judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment—many of whom served in state legislatures—assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded.


The writings of the early leaders who helped to shape our Nation provide a final source of insight into the original understanding of the Free Exercise Clause. The thoughts of James Madison—one of the principal architects of the Bill of Rights—as revealed by the controversy surrounding Virginia’s General Assessment Bill of 1784, are particularly illuminating. Virginia’s debate over religious issues did not end with its adoption of a constitutional free exercise provision. Although Virginia had disestablished the Church of England in 1776, it left open the question whether religion might be supported on a nonpreferential basis by a so-called “general assessment.” Levy, Essays on American Constitutional History, at 200. In the years between 1776 and 1784, the issue how to support religion in Virginia—either by general assessment or voluntarily—was widely debated. Curry, The First Freedoms, at 136.

By 1784, supporters of a general assessment, led by Patrick Henry, had gained a slight majority in the Virginia Assembly. They introduced “A Bill Establishing a Provision for the Teachers of the Christian Religion,” which proposed that citizens be taxed in order to support the Christian denomination of their choice, with those taxes not designated for any specific denomination to go to a public fund to aid seminaries. Madison viewed religious assessment as a dangerous infringement of religious liberty and led the opposition to the bill. He took the case against religious assessment to the people of Virginia in his now-famous “Memorial and Remonstrance Against Religious Assessments.” This pamphlet led thousands of Virginians to oppose the bill and to submit petitions expressing their views to the legislature. The bill eventually died in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779.

The “Memorial and Remonstrance” begins with the recognition that “[t]he Religion ... of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” 2 Writings of James Madison 184 (G. Hunt ed.1901). By its very nature, Madison wrote, the right to free exercise is “unalienable,” both because a person’s opinion “cannot follow the dictates of other[s],” and because it entails “a duty towards the Creator.” Madison continued:

This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society. . . . [E]very man who becomes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.

To Madison, then, duties to God were superior to duties to civil authorities—the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.

Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia’s Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only “when principles break out into overt acts against peace and good order.” In 1808, he indicated that he considered “‘the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.’” 11 The Writings of Thomas Jefferson 428–429 (A. Lipscomb ed.1904) (quoted in Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that “‘[e]very religious society has a right to determine for itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.’”

George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:

[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.

Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary “to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment.” Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787), reprinted in 4 Founders’ Constitution 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that “ ‘every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.’ ” Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts–Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed.1968).

These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 21–31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) (“[O]ur whole constitutional history ... supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances...”). As Madison put it in the concluding argument of his “Memorial and Remonstrance”:

[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience’ is held by the same tenure with all our other rights.... [I]t is equally the gift of nature; ... it cannot be less dear to us; ... it is enumerated with equal solemnity, or rather studied emphasis.

Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich 31. Finally, all shared the conviction that “ ‘true religion and good morals are the only solid foundation of public liberty and happiness.’” Curry, The First Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich 72 (“The Founders ... acknowledged that the republic rested largely on moral principles derived from religion”). To give meaning to these ideas—particularly in a society characterized by religious pluralism and pervasive regulation—there will be times when the Constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law.


The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation’s Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment. For example, it has long been the Court’s position that freedom of speech—a right enumerated only a few words after the right to free exercise—has special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.

Although it may provide a bright line, the rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its holding in Smith—and to do so in this very case. I would therefore direct the parties to brief this issue and set the case for reargument.

I respectfully dissent from the Court’s disposition of this case.

Church of the Lukumi Babalu, Inc. v. City of Hialeah

508 U.S. 520 (1993)

JUSTICE KENNEDY delivered the opinion of the Court, except as to Part II-A-2.

The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Concerned that this fundamental nonpersecution principle of the First Amendment was implicated here, however, we granted certiorari.


This case involves practices of the Santeria religion, which originated in the 19th century. When hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, “the way of the saints.” The Cuban Yoruba express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments.

The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the orishas. The basis of the Santeria religion is the nurture of a personal relation with the orishas, and one of the principal forms of devotion is an animal sacrifice. The sacrifice of animals as part of religious rituals has ancient roots. Animal sacrifice is mentioned throughout the Old Testament and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem. In modern Islam, there is an annual sacrifice commemorating Abraham’s sacrifice of a ram in the stead of his son.

According to Santeria teaching, the orishas are powerful but not immortal. They depend for survival on the sacrifice. Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration. Animals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and death rituals.

Santeria adherents faced widespread persecution in Cuba, so the religion and its rituals were practiced in secret. The open practice of Santeria and its rites remains infrequent. The religion was brought to this Nation most often by exiles from the Cuban revolution. The District Court estimated that there are at least 50,000 practitioners in South Florida today.


The Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation organized under Florida law in 1973. The Church and its congregants practice the Santeria religion. The president of the Church is petitioner Ernesto Pichardo, who is also the Church’s priest and holds the religious title of Italero, the second highest in the Santeria faith. In April 1987, the Church leased land in the City of Hialeah, Florida, and announced plans to establish a house of worship as well as a school, cultural center, and museum. Pichardo indicated that the Church’s goal was to bring the practice of the Santeria faith, including its ritual of animal sacrifice, into the open.

The prospect of a Santeria church in their midst was distressing to many members of the Hialeah community, and the announcement of the plans to open a Santeria church in Hialeah prompted the city council to hold an emergency public session on June 9, 1987.

First, the city council adopted Resolution 87–66, which noted the “concern” expressed by residents of the city “that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and declared that “[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.” Next, the council approved an emergency ordinance, Ordinance 87–40. Among other things, the incorporated state law subjected to criminal punishment “[w]hoever ... unnecessarily or cruelly ... kills any animal.”


The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” (Emphasis added). The city does not argue that Santeria is not a “religion” within the meaning of the First Amendment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Indiana Employment Security Div. Given the historical association between animal sacrifice and religious worship, petitioners’ assertion that animal sacrifice is an integral part of their religion “cannot be deemed bizarre or incredible.” Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners’ First Amendment claim.

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources of Ore. v. Smith. Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. These ordinances fail to satisfy the Smith requirements. We begin by discussing neutrality.


In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. These cases, however, for the most part have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation and emphasis, from the issue here. Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis.

At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Indeed, it was “historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause.” These principles, though not often at issue in our Free Exercise Clause cases, have played a role in some.


Although a law targeting religious beliefs as such is never permissible, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, see Employment Div., Dept. of Human Resources of Oregon v. Smith; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. The Church contends that three of the ordinances fail this test of facial neutrality because they use the words “sacrifice” and “ritual,” words with strong religious connotations. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings. The ordinances, furthermore, define “sacrifice” in secular terms, without referring to religious practices.

Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality,”and “covert suppression of particular religious beliefs.” Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt.

The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances. First, though use of the words “sacrifice” and “ritual” does not compel a finding of improper targeting of the Santeria religion, the choice of these words is support for our conclusion. There are further respects in which the text of the city council’s enactments discloses the improper attempt to target Santeria. Resolution 87–66 recited that “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and “reiterate[d]” the city’s commitment to prohibit “any and all [such] acts of any and all religious groups.” No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.

It becomes evident that these ordinances target Santeria sacrifice when the ordinances’ operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object. To be sure, adverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. McGowan v. Maryland. The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals and health hazards from improper disposal. But the ordinances when considered together disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a “religious gerrymander,” an impermissible attempt to target petitioners and their religious practices.

It is a necessary conclusion that almost the only conduct subject to Ordinances 87–40, 87–52, and 87–71 is the religious exercise of Santeria church members. The texts show that they were drafted in tandem to achieve this result. We begin with Ordinance 87–71. It prohibits the sacrifice of animals, but defines sacrifice as “to unnecessarily kill . . . an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter. We need not discuss whether this differential treatment of two religions is itself an independent constitutional violation. It suffices to recite this feature of the law as support for our conclusion that Santeria alone was the exclusive legislative concern. The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the orishas, not food consumption. Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost all other circ*mstances are unpunished.

Operating in similar fashion is Ordinance 87–52, which prohibits the “possess [ion], sacrifice, or slaughter” of an animal with the “inten[t] to use such animal for food purposes.” This prohibition, extending to the keeping of an animal as well as the killing itself, applies if the animal is killed in “any type of ritual” and there is an intent to use the animal for food, whether or not it is in fact consumed for food. The ordinance exempts, however, “any licensed [food] establishment” with regard to “any animals which are specifically raised for food purposes,” if the activity is permitted by zoning and other laws. This exception, too, seems intended to cover kosher slaughter. Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others: If the killing is—unlike most Santeria sacrifices—unaccompanied by the intent to use the animal for food, then it is not prohibited by Ordinance 87–52; if the killing is specifically for food but does not occur during the course of “any type of ritual,” it again falls outside the prohibition; and if the killing is for food and occurs during the course of a ritual, it is still exempted if it occurs in a properly zoned and licensed establishment and involves animals “specifically raised for food purposes.” A pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the gerrymander.

We also find significant evidence of the ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends. It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits “gratuitous restrictions” on religious conduct, McGowan v. Maryland, seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.

The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice. If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city’s interest in the public health. The District Court accepted the argument that narrower regulation would be unenforceable because of the secrecy in the Santeria rituals and the lack of any central religious authority to require compliance with secular disposal regulations. It is difficult to understand, however, how a prohibition of the sacrifices themselves, which occur in private, is enforceable if a ban on improper disposal, which occurs in public, is not. The neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation.

Under similar analysis, narrower regulation would achieve the city’s interest in preventing cruelty to animals. With regard to the city’s interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city’s concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city’s interest in prohibiting cruel methods of killing. If the city has a real concern that certain methods are less humane, however, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it.


In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases. As Justice Harlan noted in the related context of the Establishment Clause, “[n]eutrality in its application requires an equal protection mode of analysis.” Here, as in equal protection cases, we may determine the city council’s object from both direct and circ*mstantial evidence.

That the ordinances were enacted “‘because of,’ not merely ‘in spite of,’” their suppression of Santeria religious practice is revealed by the events preceding their enactment. Although respondent claimed at oral argument that it had experienced significant problems resulting from the sacrifice of animals within the city before the announced opening of the Church, the city council made no attempt to address the supposed problem before its meeting in June 1987, just weeks after the Church announced plans to open. The minutes and taped excerpts of the June 9 session, both of which are in the record, evidence significant hostility exhibited by residents, members of the city council, and other city officials toward the Santeria religion and its practice of animal sacrifice.

The public crowd that attended the June 9 meetings interrupted statements by council members critical of Santeria with cheers and the brief comments of Pichardo with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba “people were put in jail for practicing this religion,” the audience applauded.

Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned: “[I]f we could not practice this [religion] in our homeland [Cuba], why bring it to this country?” Councilman Cardoso said that Santeria devotees at the Church “are in violation of everything this country stands for.” Councilman Mejides indicated that he was “totally against the sacrificing of animals” and distinguished kosher slaughter because it had a “real purpose.” The “Bible says we are allowed to sacrifice an animal for consumption,” he continued, “but for any other purposes, I don’t believe that the Bible allows that.” The president of the city council, Councilman Echevarria, asked: “What can we do to prevent the Church from opening?”

Various Hialeah city officials made comparable comments. The chaplain of the Hialeah Police Department told the city council that Santeria was a sin, “foolishness,” “an abomination to the Lord,” and the worship of “demons.” He advised the city council: “We need to be helping people and sharing with them the truth that is found in Jesus Christ.” He concluded: “I would exhort you ... not to permit this Church to exist.” The city attorney commented that Resolution 87–66 indicated: “This community will not tolerate religious practices which are abhorrent to its citizens....” Similar comments were made by the deputy city attorney. The legislative history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation.


In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.


We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith. All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause “protect[s] religious observers against unequal treatment,” and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.

The City claims that Ordinances 87–40, 87–52, and 87–71 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does. The underinclusion is substantial, not inconsequential. Despite the city’s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice. Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing—which occurs in Hialeah is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by Ordinance 87–40 sanctions euthanasia of “stray, neglected, abandoned, or unwanted animals”; destruction of animals judicially removed from their owners “for humanitarian reasons” or when the animal “is of no commercial value”; the infliction of pain or suffering “in the interest of medical science”; the placing of poison in one’s yard or enclosure; and the use of a live animal “to pursue or take wildlife or to participate in any hunting,”, and “to hunt wild hogs.”

The ordinances are also underinclusive with regard to the city’s interest in public health, which is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat. Neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. The health risks posed by the improper disposal of animal carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded it. The city does not, however, prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after their activity.

The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspected meat. Under the city’s ordinances, hunters may eat their kill and fishermen may eat their catch without undergoing governmental inspection. Likewise, state law requires inspection of meat that is sold but exempts meat from animals raised for the use of the owner and “members of his household and nonpaying guests and employees.” The asserted interest in inspected meat is not pursued in contexts similar to that of religious animal sacrifice.

We conclude, in sum, that each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief. The ordinances “ha[ve] every appearance of a prohibition that society is prepared to impose upon [Santeria worshippers] but not upon itself.” This precise evil is what the requirement of general applicability is designed to prevent.


A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “ ‘interests of the highest order’ ” and must be narrowly tailored in pursuit of those interests. The compelling interest standard that we apply once a law fails to meet the Smith requirements is not “watered down” but “really means what it says.”A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases. It follows from what we have already said that these ordinances cannot withstand this scrutiny.

First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to accomplish those interests. The absence of narrow tailoring suffices to establish the invalidity of the ordinances.

Respondent has not demonstrated, moreover, that, in the context of these ordinances, its governmental interests are compelling. Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that “a law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” As we show above, the ordinances are underinclusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions. There can be no serious claim that those interests justify the ordinances.


The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.

Justice SCALIA, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the judgment.

The Court analyzes the “neutrality” and the “general applicability” of the Hialeah ordinances in separate sections (Parts II-A and II-B, respectively), and allocates various invalidating factors to one or the other of those sections. If it were necessary to make a clear distinction between the two terms, I would draw a line somewhat different from the Court’s. But I think it is not necessary, and would frankly acknowledge that the terms are not only “interrelated,” but substantially overlap.

The terms “neutrality” and “general applicability” are not to be found within the First Amendment itself, of course, but are used in Employment Div. v. Smith and earlier cases to describe those characteristics which cause a law that prohibits an activity a particular individual wishes to engage in for religious reasons nonetheless not to constitute a “law . . . prohibiting the free exercise” of religion within the meaning of the First Amendment. In my view, the defect of lack of neutrality applies primarily to those laws that by their terms impose disabilities on the basis of religion (e. g., a law excluding members of a certain sect from public benefits; whereas the defect of lack of general applicability applies primarily to those laws which, though neutral in their terms, through their design, construction, or enforcement target the practices of a particular religion for discriminatory treatment. But certainly a law that is not of general applicability (in the sense I have described) can be considered “nonneutral”; and certainly no law that is nonneutral (in the relevant sense) can be thought to be of general applicability. Because I agree with most of the invalidating factors set forth in Part II of the Court’s opinion, and because it seems to me a matter of no consequence under which rubric (“neutrality,” Part II-A, or “general applicability,” Part II-B) each invalidating factor is discussed, I join the judgment of the Court and all of its opinion except section 2 of Part II-A.

I do not join that section because it departs from the opinion’s general focus on the object of the laws at issue to consider the subjective motivation of the lawmakers, i. e., whether the Hialeah City Council actually intended to disfavor the religion of Santeria. As I have noted elsewhere, it is virtually impossible to determine the singular “motive” of a collective legislative body.

Perhaps there are contexts in which determination of legislative motive must be undertaken. But I do not think that is true of analysis under the First Amendment (or the Fourteenth, to the extent it incorporates the First). The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: “Congress shall make no law . . . prohibiting the free exercise [of religion].” This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to “prohibi[t] the free exercise” of religion. Nor, in my view, does it matter that a legislature consists entirely of the purehearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid.

Justice BLACKMUN, with whom Justice O'CONNOR joins, concurring in the judgment.

The Court holds today that the city of Hialeah violated the First and Fourteenth Amendments when it passed a set of restrictive ordinances explicitly directed at petitioners’ religious practice. With this holding I agree. I write separately to emphasize that the First Amendment's protection of religion extends beyond those rare occasions on which the government explicitly targets religion (or a particular religion) for disfavored treatment, as is done in this case. In my view, a statute that burdens the free exercise of religion “may stand only if the law in general, and the State’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.” Employment Div. v. Smith (dissenting opinion). The Court, however, applies a different test. It applies the test announced in Smith, under which “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”I continue to believe that Smith was wrongly decided, because it ignored the value of religious freedom as an affirmative individual liberty and treated the Free Exercise Clause as no more than an antidiscrimination principle. Thus, while I agree with the result the Court reaches in this case, I arrive at that result by a different route.

When the State enacts legislation that intentionally or unintentionally places a burden upon religiously motivated practice, it must justify that burden by “showing that it is the least restrictive means of achieving some compelling state interest.” A State may no more create an underinclusive statute, one that fails truly to promote its purported compelling interest, than it may create an overinclusive statute, one that encompasses more protected conduct than necessary to achieve its goal. In the latter circ*mstance, the broad scope of the statute is unnecessary to serve the interest, and the statute fails for that reason. In the former situation, the fact that allegedly harmful conduct falls outside the statute’s scope belies a governmental assertion that it has genuinely pursued an interest “of the highest order.” If the State’s goal is important enough to prohibit religiously motivated activity, it will not and must not stop at religiously motivated activity.

In this case, the ordinances at issue are both overinclusive and underinclusive in relation to the state interests they purportedly serve. They are overinclusive, as the majority correctly explains, because the “legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a fiat prohibition of all Santeria sacrificial practice.” They are underinclusive as well, because “[d]espite the city’s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice.” Moreover, the “ordinances are also underinclusive with regard to the city’s interest in public health . . .”

When a law discriminates against religion as such, as do the ordinances in this case, it automatically will fail strict scrutiny under Sherbert v. Verner. This is true because a law that targets religious practice for disfavored treatment both burdens the free exercise of religion and, by definition, is not precisely tailored to a compelling governmental interest.

Thus, unlike the majority, I do not believe that “[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” In my view, regulation that targets religion in this way, ipso facto, fails strict scrutiny. It is for this reason that a statute that explicitly restricts religious practices violates the First Amendment. Otherwise, however, “[t]he First Amendment . . . does not distinguish between laws that are generally applicable and laws that target particular religious practices.”

It is only in the rare case that a state or local legislature will enact a law directly burdening religious practice as such. Because respondent here does single out religion in this way, the present case is an easy one to decide.

A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court’s views of the strength of a State’s interest in prohibiting cruelty to animals. This case does not present, and I therefore decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment. The number of organizations that have filed amicus briefs on behalf of this interest, however, demonstrates that it is not a concern to be treated lightly.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

584 U.S. 617 (2018)

JusticeKENNEDYdelivered the opinion of the Court.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti–Discrimination Act.

The Commission determined that the shop’s actions violated the Act and ruled in the couple's favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Commission’s order violated the Constitution.

The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.

The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker's refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless.

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capacity as the owner of abusiness serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.


Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events.

Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Christian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ's “teachings in all aspects of his life.” And he seeks to “honor God through his work at Masterpiece Cakeshop.”One of Phillips' religious beliefs is that “God's intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.

Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for “our wedding.” They did not mention the design of the cake they envisioned.

Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings.He explained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings.” Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages.He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsem*nt and participation in the ceremony and relationship that they were entering into.”


[T]he Colorado Anti–Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrimination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteristics, CADA in relevant part provides as follows:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.

The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.”

CADA establishes an administrative system for the resolution of discrimination claims. Complaints of discrimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Division investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. The decision of the ALJ may be appealed to the full Commission, a seven-member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. Available remedies include, among other things, orders to cease-and-desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.”


Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple’s visit to the shop. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings.

The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that hecould not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. The investigation found that Phillips had declined to sell custom wedding cakes to about six other same-sex couples on this basis. The investigator also recounted that, according to affidavits submitted by Craig and Mullins, Phillips' shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission.

The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross-motions for summary judgment and ruled in the couple's favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sexual orientation, not simply opposition to same-sex marriage as Phillips contended.

Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins' cake would force Phillips to adhere to “an ideological point of view.” Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech.

Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First Amendment. Citing this Court’s precedent inEmployment Div., Dept. of Human Resources of Ore. v. Smith, the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause, The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both constitutional claims.

The Commission affirmed the ALJ’s decision in full. The Commission ordered Phillips to “cease and desist from discriminating against . . . same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.”It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with . . . this Order.” The Commission additionally required Phillips to prepare “quarterly compliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.”

Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedialorder.

Phillips sought review here, and this Court granted certiorari. He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment.


Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed inObergefell v. Hodges “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law.

Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsem*nt in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.

Phillips’ dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. At the time of the events in question, this Court had not issued its decisions either inUnited States v. Windsor, orObergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State.

At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers' creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.

There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circ*mstances of the case.


The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs“if he decides to do business in the state.” A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.” Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law—a law that protects against discrimination on the basis of religion as well as sexual orientation.

The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mentionthose comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.

As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory,” featured “language and images [the baker] deemed hateful,” or displayed a message the baker “deemed as discriminatory.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies” to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,”West Virginia Bd. of Ed. v. Barnette, it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.


For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

InChurch of Lukumi Babalu Aye, the Court made clear that the government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion.Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.”

Factors relevant to the assessment of governmental neutrality include “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.” In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs. The Commission gave “every appearance” of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it.It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.

While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside.


The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circ*mstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The outcome of cases like this in other circ*mstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Justice KAGAN, with whom JusticeBREYERjoins, concurring.

“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court’s holding.

The Court partly relies on the “disparate consideration of Phillips’ case compared to the cases of [three] other bakers” who “objected to a requested cake on the basis of conscience.”In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them. Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips—who objected for religious reasons to baking a wedding cake for a same-sex couple—did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as between the Jack cases and the Phillips case. And the Court takes especialnote of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested “offensive [in] nature.” As the Court states, a “principled rationale for the difference in treatment” cannot be “based on the government's own assessment of offensiveness.”

What makes the state agencies' consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti–Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed.Colo. Rev. Stat. § 24–34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA's demand that customers receive “the full and equal enjoyment” of public accommodations irrespective of their sexual orientation. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.

I read the Court's opinion as fully consistent with that view. The Court limits its analysis to thereasoningof the state agencies (and Court of Appeals)—“quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished.” And the Court itself recognizes the principle that would properly account for a difference inresultbetween those cases. Colorado law, the Court says, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” For that reason, Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State's decisions are not infected by religious hostility or bias. I accordingly concur.

JusticeGORSUCH, with whom JusticeALITOjoins, concurring.

I am pleased to join [the Court’s] opinion in full. The only wrinkle is this. In the face of so much evidence suggesting hostility toward Mr. Phillips's sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers—or that it could have easily done so consistent with the First Amendment. But, respectfully, I do not see how we might rescue the Commission from its error.

The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakersknewtheir conduct promised the effect of leaving a customer in a protected class unserved. But there's no indication the bakers actuallyintendedto refuse servicebecause ofa customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.

The Commission cannot have it both ways. The Commission cannot slide up and down themens reascale, picking a mental state standard to suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required (as the Commission held in Mr. Jack’s case), or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class (as the Commission held in Mr. Phillips’s case). Perhaps the Commission could have chosen either course as an initial matter. But the one thing it can't do is apply a more generous legal test to secular objections than religious ones. That is anything but the neutral treatment of religion.

The real explanation for the Commission’s discrimination soon comes clear, too—and it does anything but help its cause. This isn’t a case where the Commission self-consciously announced a change in its legal rule in all public accommodation cases. Nor is this a case where the Commission offered some persuasive reason for its discrimination that might survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to condemn Mr. Phillips for expressing just the kind of “irrational” or “offensive . . .message” that the bakers in the first case refused to endorse. Many may agree with the Commission and consider Mr. Phillips’s religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.

Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr. Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its decoration, and then suggest this distinction makes all the difference. It is no answer either simply to slide up a level of generality to redescribe Mr. Phillips's case as involving only a wedding cakelike any other, so the fact that Mr. Phillips would make one for some means he must make them for all. These arguments, too, fail to afford Mr. Phillips's faith neutral respect.

Take the first suggestion first. To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack's case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding. Like “an emblem or flag,” a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific “system, idea, [or] institution.”West Virginia Bd. of Ed. v. Barnette. It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack's case the choice to refuse to advance a message they deemed offensive to their secular commitments. That is not neutral.

Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated. Civil authorities, whether “high or petty,” bear no license to declare what is or should be “orthodox” when it comes to religious beliefs, or whether an adherent has “correctly perceived” the commands of his religion. Instead, it is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith.

The second suggestion fares no better. Suggesting that this case is only about “wedding cakes”—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients istoo general; understanding it as celebrating a same-sex wedding istoo specific; but regarding it as a generic wedding cake isjust right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowedthem to refuse service. Having done that there, it must do the same here.

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dialsjust right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack’s case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips’s case (a cake that conveys no message regarding same-sex marriage). Of course, underSmitha vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment andSmith,it must be applied in a manner that treats religion with neutral respect. That means the government must apply thesamelevel of generality across cases—and that did not happen here.

There is another problem with sliding up the generality scale: it risks denying constitutional protection to religious beliefs that draw distinctions more specific than the government’s preferred level of description. To some, all wedding cakes may appear indistinguishable. Butto Mr. Phillipsthat is not the case—his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful treatment than the bakers’ secular beliefs in Mr. Jack’s case. This Court has explained these same points “[r]epeatedly and in many different contexts” over many years. For example, inThomasa faithful Jehovah’s Witness and steel mill worker agreed to help manufacture sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. Of course, the line Mr. Thomas drew wasn't the same many others would draw and it wasn’t even the same line many other members of the same faith would draw. Even so, the Court didn’t try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments—and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a weddingcake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread isjustbread or a kippah isjusta cap.

Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case. The Court recognizes this by reversing the judgment below and holding that the Commission’s order “must be set aside.” Maybe in some future rulemaking or case the Commission could adopt a new “knowing” standard for all refusals of service and offer neutral reasons for doing so. But, as the Court observes, “[h]owever later cases raising these or similar concerns are resolved in the future, . . . the rulings of the Commission and of the state court that enforced the Commission’s order” inthiscase “must be invalidated.” Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.

JusticeTHOMAS, with whom JusticeGORSUCH joins, concurring in part and concurring in the judgment.

I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips’ right to freely exercise his religion. As Justice Gorsuch explains, the Commission treated Phillips’ case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips’ religion. The Court agrees that the Commission treated Phillips differently, and it points out that some of the Commissioners made comments disparaging Phillips' religion. Although the Commissioners’ comments are certainly disturbing, the discriminatory application of Colorado’s public-accommodations law is enough on its own to violate Phillips’ rights. To the extent the Court agrees, I join its opinion.

While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. Specifically, the parties dispute whether Phillips refused to create acustomwedding cake for the individual respondents, or whether he refused to sell themanywedding cake (including a premade one). But the Colorado Court of Appeals resolved this factual dispute in Phillips’ favor. The court described his conduct as a refusal to “design and create a cake to celebrate [a] same-sex wedding.”

Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado's public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.



The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palette with a paintbrush and baker's whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece's website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018).

Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding toensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that“a wedding has occurred, a marriage has begun, and the couple should be celebrated.”

Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, “[w]edding cakes are so packed with symbolism that it is hard to know where to begin.” M. Krondl, Sweet Invention: A History of Dessert 321 (2011) (Krondl); see alsoibid.(explaining the symbolism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is “so standardised and inevitable a part of getting married that few ever think to question it.” Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. “A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards.”Although the cake is eventually eaten, that is not its primary purpose. The cake’s purpose is to mark the beginning of a new marriage and to celebrate the couple.

Accordingly, Phillips’ creation of custom wedding cakes is expressive.


Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the lawwithstands strict scrutiny.

* * *

InObergefell, I warned that the Court's decision would “inevitabl[y] ... come into conflict” with religious liberty, “as individuals ... are confronted with demands to participate in and endorse civil marriages between same-sex couples.”This case proves that the conflict hasalready emerged. Because the Court’s decision vindicates Phillips' right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventingObergefellfrom being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals' must be rejected.

JusticeGINSBURG, with whom JusticeSOTOMAYORjoins, dissenting.

There is much in the Court's opinion with which I agree. “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”“Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”“[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’”Gay persons may be spared from “indignities when they seek goods and services in an open market.”I strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction.

The Court concludes that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.” This conclusion rests on evidence said to show the Colorado Civil Rights Commission’s(Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted “disparate consideration of Phillips' case compared to the cases of” three other bakers who refused to make cakes requested by William Jack, anamicushere. The Court also finds hostility in statements made at two public hearings on Phillips’ appeal to the Commission. The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below.


On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal from that decision—William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] ... ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘hom*osexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’”

In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold.

One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery “does not discriminate” and “accept[s] all humans.” The second bakery owner told Jack he “had done open Bibles and books many times and that they look amazing,” but declined to make the specific cakes Jack described because the baker regarded the messages as “hateful.” The third bakery, according to Jack, said it would bake the cakes, but would not include the requested message.

Jack filed charges against each bakery with the Colorado Civil Rights Division (Division). The Division found no probable cause to support Jack’s claims of unequal treatment and denial of goods or services based on his Christian religious beliefs. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for designs demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects. The Commission summarily affirmed the Division's no-probable-cause finding.

The Court concludes that “the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of [the other bakers’] objections.”But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her religion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips wouldnotsell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebratingtheirwedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.

The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries' sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer.


Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’s holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the casede novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips’ case is thus far removed from the only precedent upon which the Court relies,Church of Lukumi Babalu Aye, Inc. v. Hialeah, where the government action thatviolated a principle of religious neutrality implicated a sole decisionmaking body, the city council.

* * *

For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule.

Fulton v. City of Philadelphia

593 U.S. 522 (2021)

Chief Justice ROBERTS delivered the opinion of the Court.

Catholic Social Services is a foster care agency in Philadelphia. The City stopped referring children to CSS upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage. The City will renew its foster care contract with CSS only if the agency agrees to certify same-sex couples. The question presented is whether the actions of Philadelphia violate the First Amendment.


The Catholic Church has served the needy children of Philadelphia for over two centuries. In 1798, a priest in the City organized an association to care for orphans whose parents had died in a yellow fever epidemic. During the 19th century, nuns ran asylums for orphaned and destitute youth. When criticism of asylums mounted in the Progressive Era, the Church established the Catholic Children’s Bureau to place children in foster homes. Petitioner CSS continues that mission today.

The Philadelphia foster care system depends on cooperation between the City and private foster agencies like CSS. When children cannot remain in their homes, the City’s Department of Human Services assumes custody of them. The Department enters standard annual contracts with private foster agencies to place some of those children with foster families.

The placement process begins with review of prospective foster families. Pennsylvania law gives the authority to certify foster families to state-licensed foster agencies like CSS. 55 Pa. Code §3700.61 (2020). Before certifying a family, an agency must conduct a home study during which it considers statutory criteria including the family’s “ability to provide care, nurturing and supervision to children,” “[e]xisting family relationships,” and ability “to work in partnership” with a foster agency. §3700.64. The agency must decide whether to “approve, disapprove or provisionally approve the foster family.” §3700.69.

When the Department seeks to place a child with a foster family, it sends its contracted agencies a request, known as a referral. The agencies report whether any of their certified families are available, and the Department places the child with what it regards as the most suitable family. The agency continues to support the family throughout the placement.

The religious views of CSS inform its work in this system. CSS believes that “marriage is a sacred bond between a man and a woman.” Because the agency understands the certification of prospective foster families to be an endorsem*nt of their relationships, it will not certify unmarried couples—regardless of their sexual orientation—or same-sex married couples. CSS does not object to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, CSS would direct the couple to one of the more than 20 other agencies in the City, all of which currently certify same-sex couples. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs.

But things changed in 2018. After receiving a complaint about a different agency, a newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not be able to consider prospective foster parents in same-sex marriages. The City Council called for an investigation, saying that the City had “laws in place to protect its people from discrimination that occurs under the guise of religious freedom.” The Philadelphia Commission on Human Relations launched an inquiry. And the Commissioner of the Department of Human Services held a meeting with the leadership of CSS. She remarked that “things have changed since 100 years ago,” and “it would be great if we followed the teachings of Pope Francis, the voice of the Catholic Church.” Immediately after the meeting, the Department informed CSS that it would no longer refer children to the agency. The City later explained that the refusal of CSS to certify same-sex couples violated a non-discrimination provision in its contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance. The City stated that it would not enter a full foster care contract with CSS in the future unless the agency agreed to certify same-sex couples.

CSS and three foster parents affiliated with the agency filed suit against the City, the Department, and the Commission. The Support Center for Child Advocates and Philadelphia Family Pride intervened as defendants. As relevant here, CSS alleged that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amendment. CSS sought a temporary restraining order and preliminary injunction directing the Department to continue referring children to CSS without requiring the agency to certify same-sex couples.

The District Court denied preliminary relief. It concluded that the contractual non-discrimination requirement and the Fair Practices Ordinance were neutral and generally applicable under Employment Division v. Smith, and that the free exercise claim was therefore unlikely to succeed. The court also determined that the free speech claims were unlikely to succeed because CSS performed certifications as part of a government program.

The Court of Appeals for the Third Circuit affirmed. Because the contract between the parties had expired, the court focused on whether the City could insist on the inclusion of new language forbidding discrimination on the basis of sexual orientation as a condition of contract renewal. The court concluded that the proposed contractual terms were a neutral and generally applicable policy under Smith. The court rejected the agency’s free speech claims on the same grounds as the District Court.

CSS and the foster parents sought review. They challenged the Third Circuit’s determination that the City’s actions were permissible under Smith and also asked this Court to reconsider that precedent.

We granted certiorari. 589 U. S. ___ (2020).



The Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the free exercise” of religion. As an initial matter, it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. The City disagrees. In its view, certification reflects only that foster parents satisfy the statutory criteria, not that the agency endorses their relationships. But CSS believes that certification is tantamount to endorsem*nt. And “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. Our task is to decide whether the burden the City has placed on the religious exercise of CSS is constitutionally permissible.

Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable. CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so. But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable. See Church of Lukumi Babalu Aye, Inc. v. Hialeah.

Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n; Lukumi. CSS points to evidence in the record that it believes demonstrates that the City has transgressed this neutrality standard, but we find it more straightforward to resolve this case under the rubric of general applicability.

A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions.’” For example, in Sherbert v. Verner, a Seventh-day Adventist was fired because she would not work on Saturdays. Unable to find a job that would allow her to keep the Sabbath as her faith required, she applied for unemployment benefits. The State denied her application under a law prohibiting eligibility to claimants who had “failed, without good cause . . . to accept available suitable work.” We held that the denial infringed her free exercise rights and could be justified only by a compelling interest.

Smith later explained that the unemployment benefits law in Sherbert was not generally applicable because the “good cause” standard permitted the government to grant exemptions based on the circ*mstances underlying each application. Smith went on to hold that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.”

A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way. In Church of Lukumi Babalu Aye, Inc. v. Hialeah, for instance, the City of Hialeah adopted several ordinances prohibiting animal sacrifice, a practice of the Santeria faith. The City claimed that the ordinances were necessary in part to protect public health, which was “threatened by the disposal of animal carcasses in open public places.” But the ordinances did not regulate hunters’ disposal of their kills or improper garbage disposal by restaurants, both of which posed a similar hazard. The Court concluded that this and other forms of underinclusiveness meant that the ordinances were not generally applicable.


The City initially argued that CSS’s practice violated section 3.21 of its standard foster care contract. We conclude, however, that this provision is not generally applicable as required by Smith. The current version of section 3.21 specifies in pertinent part:

“Rejection of Referral. Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.”

This provision requires an agency to provide “Services,” defined as “the work to be performed under this Contract,” to prospective foster parents regardless of their sexual orientation.

Like the good cause provision in Sherbert, section 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS. But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” Smith.

The City and intervenor-respondents resist this conclusion on several grounds. They first argue that governments should enjoy greater leeway under the Free Exercise Clause when setting rules for contractors than when regulating the general public. The government, they observe, commands heightened powers when managing its internal operations. And when individuals enter into government employment or contracts, they accept certain restrictions on their freedom as part of the deal. Given this context, the City and intervenor-respondents contend, the government should have a freer hand when dealing with contractors like CSS.

These considerations cannot save the City here. As Philadelphia rightly acknowledges, “principles of neutrality and general applicability still constrain the government in its capacity as manager.” We have never suggested that the government may discriminate against religion when acting in its managerial role. And Smith itself drew support for the neutral and generally applicable standard from cases involving internal government affairs. See Smith (citing Lyng v. Northwest Indian Cemetery Protective Assn. and Bowen v. Roy). The City and intervenor-respondents accordingly ask only that courts apply a more deferential approach in determining whether a policy is neutral and generally applicable in the contracting context. We find no need to resolve that narrow issue in this case. No matter the level of deference we extend to the City, the inclusion of a formal system of entirely discretionary exceptions in section 3.21 renders the contractual non-discrimination requirement not generally applicable.

Perhaps all this explains why the City now contends that section 3.21 does not apply to CSS’s refusal to certify same-sex couples after all. Instead, the City says that section 3.21 addresses only “an agency’s right to refuse ‘referrals’ to place a child with a certified foster family.” We think the City had it right the first time. Although the section is titled “Rejection of Referral,” the text sweeps more broadly, forbidding the rejection of “prospective foster . . . parents” for “Services,” without limitation. The City maintains that certification is one of the services foster agencies are hired to perform, so its attempt to backtrack on the reach of section 3.21 is unavailing. Moreover, the City adopted the current version of section 3.21 shortly after declaring that it would make CSS’s obligation to certify same-sex couples “explicit” in future contracts, confirming our understanding of the text of the provision.

The City and intervenor-respondents add that, notwithstanding the system of exceptions in section 3.21, a separate provision in the contract independently prohibits discrimination in the certification of foster parents. That provision, section 15.1, bars discrimination on the basis of sexual orientation, and it does not on its face allow for exceptions. But state law makes clear that “one part of a contract cannot be so interpreted as to annul another part.” Applying that “fundamental” rule here, an exception from section 3.21 also must govern the prohibition in section 15.1, lest the City’s reservation of the authority to grant such an exception be a nullity. As a result, the contract as a whole contains no generally applicable non-discrimination requirement.

Finally, the City and intervenor-respondents contend that the availability of exceptions under section 3.21 is irrelevant because the Commissioner has never granted one. That misapprehends the issue. The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude—here, at the Commissioner’s “sole discretion.”

The [Gorsuch] concurrence objects that no party raised these arguments in this Court. But CSS, supported by the United States, contended that the City’s “made-for-CSS Section 3.21 permits discretionary ‘exception[s]’ from the requirement ‘not [to] reject a child or family’ based upon ‘their . . . sexual orientation,’ ” which “alone triggers strict scrutiny.” The concurrence favors the City’s reading of section 3.21, but we find CSS’s position more persuasive.


In addition to relying on the contract, the City argues that CSS’s refusal to certify same-sex couples constitutes an “Unlawful Public Accommodations Practice[ ]” in violation of the Fair Practices Ordinance. That ordinance forbids “deny[ing] or interfer[ing] with the public accommodations opportunities of an individual or otherwise discriminat[ing] based on his or her race, ethnicity, color, sex, sexual orientation, . . . disability, marital status, familial status,” or several other protected categories. Phila. Code §9–1106(1) (2016). The City contends that foster care agencies are public accommodations and therefore forbidden from discriminating on the basis of sexual orientation when certifying foster parents.

CSS counters that “foster care has never been treated as a ‘public accommodation’ in Philadelphia.” In any event, CSS adds, the ordinance cannot qualify as generally applicable because the City allows exceptions to it for secular reasons despite denying one for CSS’s religious exercise. But that constitutional issue arises only if the ordinance applies to CSS in the first place. We conclude that it does not because foster care agencies do not act as public accommodations in performing certifications.

The ordinance defines a public accommodation in relevant part as “[a]ny place, provider or public conveyance, whether licensed or not, which solicits or accepts the patronage or trade of the public or whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” §9–1102(1)(w). Certification is not “made available to the public” in the usual sense of the words. To make a service “available” means to make it “accessible, obtainable.” Merriam-Webster’s Collegiate Dictionary 84 (11th ed. 2005); see also 1 Oxford English Dictionary 812 (2d ed. 1989) (“capable of being made use of, at one’s disposal, within one’s reach”). Related state law illustrates the same point. A Pennsylvania antidiscrimination statute similarly defines a public accommodation as an accommodation that is “open to, accepts or solicits the patronage of the general public.” Pa. Stat. Ann., Tit. 43, §954(l) (2009). It fleshes out that definition with examples like hotels, restaurants, drug stores, swimming pools, barbershops, and public conveyances. The “common theme” is that a public accommodation must “provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.”

Certification as a foster parent, by contrast, is not readily accessible to the public. It involves a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. The process takes three to six months. Applicants must pass background checks and a medical exam. Foster agencies are required to conduct an intensive home study during which they evaluate, among other things, applicants’ “mental and emotional adjustment,” “community ties with family, friends, and neighbors,” and “[e]xisting family relationships, attitudes and expectations regarding the applicant’s own children and parent/child relationships.” 55 Pa. Code §3700.64. Such inquiries would raise eyebrows at the local bus station. And agencies understandably approach this sensitive process from different angles. As the City itself explains to prospective foster parents, “[e]ach agency has slightly different requirements, specialties, and training programs.” All of this confirms that the one-size-fits-all public accommodations model is a poor match for the foster care system.

The City asks us to adhere to the District Court’s contrary determination that CSS qualifies as a public accommodation under the ordinance. The [Gorsuch] concurrence adopts the City’s argument, seeing no incongruity in deeming a private religious foster agency a public accommodation. We respectfully disagree with the view of the City and the concurrence. Although “we ordinarily defer to lower court constructions of state statutes, we do not invariably do so.” Deference would be inappropriate here. The District Court did not take into account the uniquely selective nature of the certification process, which must inform the applicability of the ordinance. We agree with CSS’s position, which it has maintained from the beginning of this dispute, that its “foster services do not constitute a ‘public accommodation’ under the City’s Fair Practices Ordinance, and therefore it is not bound by that ordinance.” We therefore have no need to assess whether the ordinance is generally applicable.


The contractual non-discrimination requirement imposes a burden on CSS’s religious exercise and does not qualify as generally applicable. The [Gorsuch] concurrence protests that the “Court granted certiorari to decide whether to overrule [Smith],” and chides the Court for seeking to “sidestep the question.” But the Court also granted review to decide whether Philadelphia’s actions were permissible under our precedents. CSS has demonstrated that the City’s actions are subject to “the most rigorous of scrutiny” under those precedents. Because the City’s actions are therefore examined under the strictest scrutiny regardless of Smith, we have no occasion to reconsider that decision here.

A government policy can survive strict scrutiny only if it advances “interests of the highest order” and is narrowly tailored to achieve those interests. Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so.

The City asserts that its non-discrimination policies serve three compelling interests: maximizing the number of foster parents, protecting the City from liability, and ensuring equal treatment of prospective foster parents and foster children. The City states these objectives at a high level of generality, but the First Amendment demands a more precise analysis. See Gonzales v. O Centro Espírita Beneficente União do Vegetal (discussing the compelling interest test applied in Sherbert and Wisconsin v. Yoder). Rather than rely on “broadly formulated interests,” courts must “scrutinize[ ] the asserted harm of granting specific exemptions to particular religious claimants.” The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.

Once properly narrowed, the City’s asserted interests are insufficient. Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. As for liability, the City offers only speculation that it might be sued over CSS’s certification practices. Such speculation is insufficient to satisfy strict scrutiny, particularly because the authority to certify foster families is delegated to agencies by the State, not the City.

That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop. On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its non-discrimination policies can brook no departures. See Lukumi. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.

*  *  *

As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.

In view of our conclusion that the actions of the City violate the Free Exercise Clause, we need not consider whether they also violate the Free Speech Clause.

The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice GORSUCH, with whom Justice THOMAS and Justice ALITO join, concurring in the judgment.

The Court granted certiorari to decide whether to overrule Employment Division v. Smith. As Justice Alito’s opinion demonstrates, Smith failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice. A majority of our colleagues, however, seek to sidestep the question. They agree that the City of Philadelphia’s treatment of Catholic Social Services (CSS) violates the Free Exercise Clause. But, they say, there’s no “need” or “reason” to address the error of Smith today.

On the surface it may seem a nice move, but dig an inch deep and problems emerge. Smith exempts “neutral” and “generally applicable” laws from First Amendment scrutiny. The City argues that its challenged rules qualify for that exemption because they require all foster-care agencies—religious and non-religious alike—to recruit and certify same-sex couples interested in serving as foster parents. For its part, the majority assumes (without deciding) that Philadelphia’s rule is indeed “neutral” toward religion. So to avoid Smith’s exemption and subject the City’s policy to First Amendment scrutiny, the majority must carry the burden of showing that the policy isn’t “generally applicable.”


That path turns out to be a long and lonely one. The district court held that the City’s public accommodations law (its Fair Practices Ordinance or FPO) is both generally applicable and applicable to CSS. At least initially, the majority chooses to bypass the district court’s major premise—that the FPO qualifies as “generally applicable” under Smith. It’s a curious choice given that the FPO applies only to certain defined entities that qualify as public accommodations while the “generally applicable law” in Smith was “an across-the-board criminal prohibition” enforceable against anyone. But if the goal is to turn a big dispute of constitutional law into a small one, the majority’s choice to focus its attack on the district court’s minor premise—that the FPO applies to CSS as a matter of municipal law—begins to make some sense. Still, it isn’t exactly an obvious path. The Third Circuit did not address the district court’s interpretation of the FPO. And not one of the over 80 briefs before us contests it. To get to where it wishes to go, then, the majority must go it alone. So much for the adversarial process and being “a court of review, not of first view.”

Trailblazing through the Philadelphia city code turns out to be no walk in the park either. As the district court observed, the City’s FPO defines “public accommodations” expansively to include “[a]ny provider” that “solicits or accepts patronage” of “the public or whose . . . services [or] facilities” are “made available to the public.” And, the district court held, this definition covers CSS because (among other things) it “publicly solicits prospective foster parents” and “provides professional ‘services’ to the public.” All of which would seem to block the majority’s way. So how does it get around that problem?

It changes the conversation. The majority ignores the FPO’s expansive definition of “public accommodations.” It ignores the reason the district court offered for why CSS falls within that definition. Instead, it asks us to look to a different public accommodations law—a Commonwealth of Pennsylvania public accommodations statute. And, the majority promises, CSS fails to qualify as a public accommodation under the terms of that law. But why should we ignore the City’s law and look to the Commonwealth’s? No one knows because the majority doesn’t say.

Even playing along with this statutory shell game doesn’t solve the problem. The majority highlights the fact that the state law lists various examples of public accommodations—including hotels, restaurants, and swimming pools. The majority then argues that foster agencies fail to qualify as public accommodations because, unlike these listed entities, foster agencies “involv[e] a customized and selective assessment.” But where does that distinction come from? Not the text of the state statute, not state case law, and certainly not from the briefs. The majority just declares it—a new rule of Pennsylvania common law handed down by the United States Supreme Court.

The majority’s gloss on state law isn’t just novel, it’s probably wrong. While the statute lists hotels, restaurants, and swimming pools as examples of public accommodations, it also lists over 40 other kinds of institutions—and the statute emphasizes that these examples are illustrative, not exhaustive. Among its illustrations, too, the statute offers public “colleges and universities” as examples of public accommodations. Often these institutions do engage in a “customized and selective assessment” of their clients (students) and employees (faculty). And if they can qualify as public accommodations under the state statute, it isn’t exactly clear why foster agencies cannot. What does the majority have to say about this problem? Again, silence.

If anything, the majority’s next move only adds to the confusion. It denies cooking up any of these arguments on its own. It says it merely means to “agree with CSS’s position . . . that its ‘foster services do not constitute a “public accommodation” under the City’s Fair Practices Ordinance.’” But CSS’s cited “position”—which comes from a letter it sent to the City before litigation even began—includes nothing like the majority’s convoluted chain of reasoning involving a separate state statute. Instead, CSS’s letter contends that the organization’s services do not qualify as “public accommodations” because they are “only available to at-risk children who have been removed by the state and are in need of a loving home.” The majority tells us with assurance that it “agree[s] with” this position, adding that it would be “incongru[ous]” to “dee[m] a private religious foster agency a public accommodation.”

What to make of all this? Maybe this part of the majority opinion should be read only as reaching for something—anything—to support its curious separate-statute move. But maybe the majority means to reject the district court’s major premise after all—suggesting it would be incongruous for public accommodations laws to qualify as generally applicable under Smith because they do not apply to everyone. Or maybe the majority means to invoke a canon of constitutional avoidance: Before concluding that a public accommodations law is generally applicable under Smith, courts must ask themselves whether it would be “incongru[ous]” to apply that law to religious groups. Maybe all this ambiguity is deliberate, maybe not. The only thing certain here is that the majority’s attempt to cloak itself in CSS’s argument introduces more questions than answers.


Still that’s not the end of it. Even now, the majority’s circumnavigation of Smith remains only half complete. The City argues that, in addition to the FPO, another generally applicable nondiscrimination rule can be found in §15.1 of its contract with CSS. That provision independently instructs that foster service providers “shall not discriminate or permit discrimination against any individual on the basis of . . . sexual orientation.” This provision, the City contends, amounts to a second and separate rule of general applicability exempt from First Amendment scrutiny under Smith. Once more, the majority must find some way around the problem. Its attempt to do so proceeds in three steps.

First, the majority directs our attention to another provision of the contract—§3.21. Entitled “Rejection of Referral,” this provision prohibits discrimination based on sexual orientation, race, religion, or other grounds “unless an exception is granted” in the government’s “sole discretion.” Clearly, the majority says, that provision doesn’t state a generally applicable rule against discrimination because it expressly contemplates “exceptions.”

But how does that help? As §3.21’s title indicates, the provision contemplates exceptions only when it comes to the referral stage of the foster process—where the government seeks to place a particular child with an available foster family. So, for example, the City has taken race into account when placing a child who “used racial slurs” to avoid placing him with parents “of that race.” Meanwhile, our case has nothing to do with the referral—or placement—stage of the foster process. This case concerns the recruitment and certification stages—where foster agencies like CSS screen and enroll adults who wish to serve as foster parents. And in those stages of the foster process, §15.1 seems to prohibit discrimination absolutely.

That difficulty leads the majority to its second step. It asks us to ignore §3.21’s title and its limited application to the referral stage. See ante, at 9. Instead, the majority suggests, we should reconceive §3.21 as authorizing exceptions to the City’s nondiscrimination rule at every stage of the foster process. Once we do that, the majority stresses, §3.21’s reservation of discretion is irreconcilable with §15.1’s blanket prohibition against discrimination.

This sets up the majority’s final move—where the real magic happens. Having conjured a conflict within the contract, the majority devises its own solution. It points to some state court decisions that, it says, set forth the “rule” that Pennsylvania courts shouldn’t interpret one provision in a contract “to annul” another part. To avoid nullifying §3.21’s reservation of discretion, the majority insists, it has no choice but to rewrite §15.1. All so that—voila—§15.1 now contains its own parallel reservation of discretion. As rewritten, the contract contains no generally applicable rule against discrimination anywhere in the foster process.

From start to finish, it is a dizzying series of maneuvers. The majority changes the terms of the parties’ contract, adopting an uncharitably broad reading (really revision) of §3.21. It asks us to ignore the usual rule that a more specific contractual provision can comfortably coexist with a more general one. And it proceeds to resolve a conflict it created by rewriting §15.1. Once more, too, no party, amicus, or lower court argued for any of this.

To be sure, the majority again claims otherwise—representing that it merely adopts the arguments of CSS and the United States. But here, too, the majority’s representation raises rather than resolves questions. Instead of pursuing anything like the majority’s contract arguments, CSS and the United States suggest that §3.21 “alone triggers strict scrutiny,” because that provision authorizes the City “to grant formal exemptions from its policy” of nondiscrimination. On this theory, it’s irrelevant whether §3.21 or §15.1 reserve discretion to grant exemptions at all stages of the process or at only one stage. Instead, the City’s power to grant exemptions from its nondiscrimination policy anywhere “undercuts its asserted interests” and thus “trigger[s] strict scrutiny” for applying the policy everywhere. Exceptions for one means strict scrutiny for all. See, e.g., Tandon v. Newsom (per curiam). All of which leaves us to wonder: Is the majority just stretching to claim some cover for its novel arguments? Or does it actually mean to adopt the theory it professes to adopt?


Given all the maneuvering, it’s hard not to wonder if the majority is so anxious to say nothing about Smith’s fate that it is willing to say pretty much anything about municipal law and the parties’ briefs. One way or another, the majority seems determined to declare there is no “need” or “reason” to revisit Smith today.

But tell that to CSS. Its litigation has already lasted years—and today’s (ir)resolution promises more of the same. Had we followed the path Justice Alito outlines—holding that the City’s rules cannot avoid strict scrutiny even if they qualify as neutral and generally applicable—this case would end today. Instead, the majority’s course guarantees that this litigation is only getting started. As the final arbiter of state law, the Pennsylvania Supreme Court can effectively overrule the majority’s reading of the Commonwealth’s public accommodations law. The City can revise its FPO to make even plainer still that its law does encompass foster services. Or with a flick of a pen, municipal lawyers may rewrite the City’s contract to close the §3.21 loophole.

Once any of that happens, CSS will find itself back where it started. The City has made clear that it will never tolerate CSS carrying out its foster-care mission in accordance with its sincerely held religious beliefs. To the City, it makes no difference that CSS has not denied service to a single same-sex couple; that dozens of other foster agencies stand willing to serve same-sex couples; or that CSS is committed to help any inquiring same-sex couples find those other agencies. The City has expressed its determination to put CSS to a choice: Give up your sincerely held religious beliefs or give up serving foster children and families. If CSS is unwilling to provide foster-care services to same-sex couples, the City prefers that CSS provide no foster-care services at all. This litigation thus promises to slog on for years to come, consuming time and resources in court that could be better spent serving children. And throughout it all, the opacity of the majority’s professed endorsem*nt of CSS’s arguments ensures the parties will be forced to devote resources to the unenviable task of debating what it even means.

Nor will CSS bear the costs of the Court’s indecision alone. Individuals and groups across the country will pay the price—in dollars, in time, and in continued uncertainty about their religious liberties. Consider Jack Phillips, the baker whose religious beliefs prevented him from creating custom cakes to celebrate same-sex weddings. See Masterpiece Cakeshop. After being forced to litigate all the way to the Supreme Court, we ruled for him on narrow grounds similar to those the majority invokes today. Because certain government officials responsible for deciding Mr. Phillips’s compliance with a local public accommodations law uttered statements exhibiting hostility to his religion, the Court held, those officials failed to act “neutrally” under Smith. But with Smith still on the books, all that victory assured Mr. Phillips was a new round of litigation—with officials now presumably more careful about admitting their motives. A nine-year odyssey thus barrels on. No doubt, too, those who cannot afford such endless litigation under Smith’s regime have been and will continue to be forced to forfeit religious freedom that the Constitution protects.

The costs of today’s indecision fall on lower courts too. As recent cases involving COVID–19 regulations highlight, judges across the country continue to struggle to understand and apply Smith’s test even thirty years after it was announced. In the last nine months alone, this Court has had to intervene at least half a dozen times to clarify how Smith works. See, e.g., Tandon; Roman Catholic Diocese of Brooklyn v. Cuomo; High Plains Harvest Church v. Polis. To be sure, this Court began to resolve at least some of the confusion surrounding Smith’s application in Tandon. But Tandon treated the symptoms, not the underlying ailment. We owe it to the parties, to religious believers, and to our colleagues on the lower courts to cure the problem this Court created.

It’s not as if we don’t know the right answer. Smith has been criticized since the day it was decided. No fewer than ten Justices—including six sitting Justices—have questioned its fidelity to the Constitution. The Court granted certiorari in this case to resolve its fate. The parties and amici responded with over 80 thoughtful briefs addressing every angle of the problem. Justice Alito has offered a comprehensive opinion explaining why Smith should be overruled. And not a single Justice has lifted a pen to defend the decision. So what are we waiting for?

We hardly need to “wrestle” today with every conceivable question that might follow from recognizing Smith was wrong. Barrett, J., concurring. To be sure, any time this Court turns from misguided precedent back toward the Constitution’s original public meaning, challenging questions may arise across a large field of cases and controversies. But that’s no excuse for refusing to apply the original public meaning in the dispute actually before us. Rather than adhere to Smith until we settle on some “grand unified theory” of the Free Exercise Clause for all future cases until the end of time, see American Legion v. American Humanist Assn., the Court should overrule it now, set us back on the correct course, and address each case as it comes.

What possible benefit does the majority see in its studious indecision about Smith when the costs are so many? The particular appeal before us arises at the intersection of public accommodations laws and the First Amendment; it involves same-sex couples and the Catholic Church. Perhaps our colleagues believe today’s circuitous path will at least steer the Court around the controversial subject matter and avoid “picking a side.” But refusing to give CSS the benefit of what we know to be the correct interpretation of the Constitution is picking a side. Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer. Respectfully, it should have done so today.

Justice ALITO, with whom Justice THOMAS and Justice GORSUCH join, concurring in the judgment.

This case presents an important constitutional question that urgently calls out for review: whether this Court’s governing interpretation of a bedrock constitutional right, the right to the free exercise of religion, is fundamentally wrong and should be corrected.

In Employment Division v. Smith, the Court abruptly pushed aside nearly 40 years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice. Even if a rule serves no important purpose and has a devastating effect on religious freedom, the Constitution, according to Smith, provides no protection. This severe holding is ripe for reexamination. . . .

[Justice Alito’s 110-page concurrence omitted]

Justice BARRETT, with whom Justice KAVANAUGH joins, and with whom Justice BREYER joins as to all but the first paragraph, concurring.

In Employment Division v. Smith, this Court held that a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise. Petitioners, their amici, scholars, and Justices of this Court have made serious arguments that Smith ought to be overruled. While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circ*mstances. In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number of issues to work through if Smith were overruled. To name a few: Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals? Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Should there be a distinction between indirect and direct burdens on religious exercise? Cf. Braunfeld v. Brown. What forms of scrutiny should apply? Compare Sherbert v. Verner (assessing whether government’s interest is “‘compelling’”), with Gillette v. United States (assessing whether government’s interest is “substantial”). And if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way?

We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes. A longstanding tenet of our free exercise jurisprudence—one that both pre-dates and survives Smith—is that a law burdening religious exercise must satisfy strict scrutiny if it gives government officials discretion to grant individualized exemptions. As the Court’s opinion today explains, the government contract at issue provides for individualized exemptions from its nondiscrimination rule, thus triggering strict scrutiny. And all nine Justices agree that the City cannot satisfy strict scrutiny. I therefore see no reason to decide in this case whether Smith should be overruled, much less what should replace it. I join the Court’s opinion in full.

United States v. Ballard

322 U.S. 78 (1944)

Mr. Justice DOUGLAS delivered the opinion of the Court.

Respondents were indicted and convicted for using, and conspiring to use, the mails to defraud. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought ‘by means of false and fraudulent representations, pretenses and promises.’ The false representations charged were eighteen in number. It is sufficient at this point to say that they covered respondents’ alleged religious doctrines or beliefs. They were all set forth in the first count. The following are representative:

that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and thereby designated by the alleged ‘ascertained masters,’ Saint Germain, as a divine messenger; and that the words of ‘ascended masters' and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard;

that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of the alleged ‘ascended masters,’ including the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the ‘I Am’ movement;

that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases; and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments;

Each of the representations enumerated in the indictment was followed by the charge that respondents ‘well knew’ it was false. After enumerating the eighteen misrepresentations the indictment also alleged:

At the time of making all of the afore-alleged representations by the defendants, and each of them, the defendants, and each of them, well knew that all of said aforementioned representations were false and untrue and were made with the intention on the part of the defendants, and each of them, to cheat, wrong, and defraud persons intended to be defrauded, and to obtain from persons intended to be defrauded by the defendants, money, property, and other things of value and to convert the same to the use and the benefit of the defendants, and each of them.

The indictment contained twelve counts, one of which charged a conspiracy to defraud. The first count set forth all of the eighteen representations, as we have said. Each of the other counts incorporated and realleged all of them and added no additional ones. There was a demurrer and a motion to quash each of which asserted among other things that the indictment attacked the religious beliefs of respondents and sought to restrict the free exercise of their religion in violation of the Constitution of the United States. These motions were denied by the District Court. Early in the trial, however, objections were raised to the admission of certain evidence concerning respondents’ religious beliefs. The court conferred with counsel in absence of the jury and with the acquiescence of counsel for the United States and for respondents confined the issues on this phase of the case to the question of the good faith of respondents. At the request of counsel for both sides the court advised the jury of that action in the following language:

Now, gentlemen, here is the issue in this case:

First, the defendants in this case made certain representations of belief in a divinity and in a supernatural power. Some of the teachings of the defendants, representations, might seem extremely improbable to a great many people. For instance, the appearance of Jesus to dictate some of the works that we have had introduced in evidence, as testified to here at the opening transcription, or shaking hands with Jesus, to some people that might seem highly improbable. I point that out as one of the many statements.

Whether that is true or not is not the concern of this Court and is not the concern of the jury-and they are going to be told so in their instructions. As far as this Court sees the issue, it is immaterial what these defendants preached or wrote or taught in their classes. They are not going to be permitted to speculate on the actuality of the happening of those incidents. Now, I think I have made that as clear as I can. Therefore, the religious beliefs of these defendants cannot be an issue in this court.

The issue is: Did these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make it any clearer than that.

If these defendants did not believe those things, they did not believe that Jesus came down and dictated, or that Saint Germain came down and dictated, did not believe the things that they wrote, the things that they preached, but used the mail for the purpose of getting money, the jury should find them guilty. Therefore, gentlemen, religion cannot come into this case.

The District Court reiterated that admonition in the charge to the jury and made it abundantly clear. The following portion of the charge is typical:

The question of the defendants' good faith is the cardinal question in this case. You are not to be concerned with the religious belief of the defendants, or any of them. The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment, and honestly and in good faith believed that the benefits which they represented would flow from their belief to those who embraced and followed their teachings, or whether these representations were mere pretenses without honest belief on the part of the defendants or any of them, and, were the representations made for the purpose of procuring money, and were the mails used for this purpose.

As we have said, counsel for the defense acquiesced in this treatment of the matter, made no objection to it during the trial, and indeed treated it without protest as the law of the case throughout the proceedings prior to the verdict. Respondents did not change their position before the District Court after verdict and contend that the truth or verity of their religious doctrines or beliefs should have been submitted to the jury. In their motion for new trial they did contend, however, that the withdrawal of these issues from the jury was error because it was in effect an amendment of the indictment. That was also one of their specifications of errors on appeal. And other errors urged on appeal included the overruling of the demurrer to the indictment and the motion to quash, and the disallowance of proof of the truth of respondents' religious doctrines or beliefs.

The Circuit Court of Appeals reversed the judgment of conviction and granted a new trial, one judge dissenting. In its view the restriction of the issue in question to that of good faith was error. Its reason was that the scheme to defraud alleged in the indictment was that respondents made the eighteen alleged false representations; and that to prove that defendants devised the scheme described in the indictment ‘it was necessary to prove that they schemed to make some, at least, of the (eighteen) representations and that some, at least, of the representations which they schemed to make were false.’ One judge thought that the ruling of the District Court was also error because it was ‘as prejudicial to the issue of honest belief as to the issue of purposeful misrepresentation.’

The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented.

The United States contends that the District Court withdrew from the jury’s consideration only the truth or falsity of those representations which related to religious concepts or beliefs and that there were representations charged in the indictment which fell within a different category. The argument is that this latter group of representations was submitted to the jury, that they were adequate to constitute an offense under the Act, and that they were supported by the requisite evidence. It is thus sought to bring the case within the rule of Hall v. United States, which held that where an indictment contained ‘all the necessary averments to constitute an offense created by the statute’, a conviction would not be set aside because a ‘totally immaterial fact’ was averred but not proved. We do not stop to ascertain the relevancy of that rule to this case, for we are of the view that all of the representations charged in the indictment which related at least in part to the religious doctrines or beliefs of respondents were withheld from the jury. The trial judge did not differentiate them. He referred in the charge to the ‘religious beliefs’ and ‘doctrines taught by the defendants’ as matters withheld from the jury. And in stating that the issue of good faith was the ‘cardinal question’ in the case he charged, as already noted, that ‘The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment.’ Nowhere in the charge were any of the separate representations submitted to the jury. A careful reading of the whole charge leads us to agree with the Circuit Court of Appeals on this phase of the case that the only issue submitted to the jury was the question as stated by the District Court, of respondents' ‘belief in their representations and promises.’

The United States contends that respondents acquiesced in the withdrawal from the jury of the truth of their religious doctrines or beliefs and that their consent bars them from insisting on a different course once that one turned out to be unsuccessful. Reliance for that position is sought in Johnson v. United States. That case stands for the proposition that, apart from situations involving an unfair trial, an appellate court will not grant a new trial to a defendant on the ground of improper introduction of evidence or improper comment by the prosecutor, where the defendant acquiesced in that course and made no objection to it. In fairness to respondents that principle cannot be applied here. The real objection of respondents is not that the truth of their religious doctrines or beliefs should have been submitted to the jury. Their demurrer and motion to quash made clear their position that that issue should be withheld from the jury on the basis of the First Amendment. Moreover, their position at all times was and still is that the court should have gone the whole way and withheld from the jury both that issue and the issue of their good faith. Their demurrer and motion to quash asked for dismissal of the entire indictment. Their argument that the truth of their religious doctrines or beliefs should have gone to the jury when the question of their good faith was submitted was and is merely an alternative argument. They never forsook their position that the indictment should have been dismissed and that none of it was good. Moreover, respondents' motion for new trial challenged the propriety of the action of the District Court in withdrawing from the jury the issue of the truth of their religious doctrines or beliefs without also withdrawing the question of their good faith. So we conclude that the rule of Johnson v. United States does not prevent respondents from reasserting now that no part of the indictment should have been submitted to the jury.

As we have noted, the Circuit Court of Appeals held that the question of the truth of the representations concerning respondent's religious doctrines or beliefs should have been submitted to the jury. And it remanded the case for a new trial. It may be that the Circuit Court of Appeals took that action because it did not think that the indictment could be properly construed as charging a scheme to defraud by means other than misrepresentations of respondents' religious doctrines or beliefs. Or that court may have concluded that the withdrawal of the issue of the truth of those religious doctrines or beliefs was unwarranted because it resulted in a substantial change in the character of the crime charged. But on whichever basis that court rested its action, we do not agree that the truth or verity of respondents' religious doctrines or beliefs should have been submitted to the jury. Whatever this particular indictment might require, the First Amendment precludes such a course, as the United States seems to concede. ‘The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.’ The First Amendment has a dual aspect. It not only ‘forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship’ but also ‘safeguards the free exercise of the chosen form of religion.’ ‘Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.’ Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position. As stated in Davis v. Beason: ‘With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.’ So we conclude that the District Court ruled properly when it withheld from the jury all questions concerning the truth or falsity of the religious beliefs or doctrines of respondents. . . .

The judgment is reversed and the cause is remanded to the Circuit Court of Appeals for further proceedings in conformity to this opinion.

Mr. Chief Justice STONE, dissenting.

I am not prepared to say that the constitutional guaranty of freedom of religion affords immunity from criminal prosecution for the fraudulent procurement of money by false statements as to one’s religious experiences, more than it renders polygamy or libel immune from criminal prosecution. I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one's religious experiences. To go no further, if it were shown that a defendant in this case had asserted as a part of the alleged fraudulent scheme, that he had physically shaken hands with St. Germain in San Francisco on a day named, or that, as the indictment here alleges, by the exertion of his spiritual power he ‘had in fact cured hundreds of persons afflicted with diseases and ailments', I should not doubt that it would be open to the Government to submit to the jury proof that he had never been in San Francisco and that no such cures had ever been effected. In any event I see no occasion for making any pronouncement on this subject in the present case.

The indictment charges respondents’ use of the mails to defraud and a conspiracy to commit that offense by false statements of their religious experiences which had not in fact occurred. But it also charged that the representations were ‘falsely and fraudulently’ made, that respondents ‘well knew’ that these representations were untrue, and that they were made by respondents with the intent to cheat and defraud those to whom they were made. With the assent of the prosecution and the defense the trial judge withdrew from the consideration of the jury the question whether the alleged religious experiences had in fact occurred, but submitted to the jury the single issue whether petitioners honestly believed that they had occurred, with the instruction that if the jury did not so find, then it should return a verdict of guilty. On this issue the jury, on ample evidence that respondents were without belief in the statements which they had made to their victims, found a verdict of guilty. The state of one’s mind is a fact as capable of fraudulent misrepresentation as is one's physical condition or the state of his bodily health. There are no exceptions to the charge and no contention that the trial court rejected any relevant evidence which petitioners sought to offer. Since the indictment and the evidence support the conviction, it is irrelevant whether the religious experiences alleged did or did not in fact occur or whether that issue could or could not, for constitutional reasons, have been rightly submitted to the jury. Certainly none of respondents' constitutional rights are violated if they are prosecuted for the fraudulent procurement of money by false representations as to their beliefs, religious or otherwise. . . .

Mr. Justice JACKSON, dissenting.

I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes the danger of such prosecutions.

The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought to trial for mail fraud on an indictment which charged that their representations were false and that they ‘well knew’ they were false. The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the defendants knew them to be untrue; and, if so, they could be convicted.

I find it difficult to reconcile this conclusion with our traditional religious freedoms.

In the first place, as a matter of either practice or philosophy I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his experience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer.

In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote on these matters as a scientist, reminds us that it is not theology and ceremonies which keep religion going. Its vitality is in the religious experiences of many people. ‘If you ask what these experiences are, they are conversations with the unseen, voices and visions, responses to prayer, changes of heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in certain appropriate ways.' If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or representation, unbelievers among his judges are likely not to understand and are almost certain not to believe him.

And then I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. James points out that ‘Faith means belief in something concerning which doubt is theoretically possible.’ Belief in what one may demonstrate to the senses is not faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or miracle. The appeal in such matters is to a very different plane of credility than is invoked by representations of secular fact in commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop’s fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.

There appear to be persons-let us hope not many-who find refreshment and courage in the teachings of the ‘I Am’ cult. If the members of the sect get comfort from the celestial guidance of their ‘Saint Germain,’ however doubtful it seems to me, it is hard to say that they do not get what they pay for. Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product.

The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in their humdrum lives. They live in mental confusion or moral anarchy and seek vaguely for truth and beauty and moral support. When they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.

Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted of fraud for making false representations on matters other than faith or experience, as for example if one represents that funds are being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt.

I would dismiss the indictment and have done with this business of judicially examining other people’s faiths.

Lyng v. Northwest Indian Cemetery Protective Association

485 U.S. 439 (1988)

Justice O’CONNOR delivered the opinion of the Court.

This case requires us to consider whether the First Amendment’s Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally been used for religious purposes by members of three American Indian tribes in northwestern California. We conclude that it does not.


As part of a project to create a paved 75–mile road linking two California towns, Gasquet and Orleans, the United States Forest Service has upgraded 49 miles of previously unpaved roads on federal land. In order to complete this project (the G–O road), the Forest Service must build a 6–mile paved segment through the Chimney Rock section of the Six Rivers National Forest. That section of the forest is situated between two other portions of the road that are already complete.

In 1977, the Forest Service issued a draft environmental impact statement that discussed proposals for upgrading an existing unpaved road that runs through the Chimney Rock area. In response to comments on the draft statement, the Forest Service commissioned a study of American Indian cultural and religious sites in the area. The Hoopa Valley Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area has historically been used for religious purposes by Yurok, Karok, and Tolowa Indians. The commissioned study, which was completed in 1979, found that the entire area “is significant as an integral and indispensible part of Indian religious conceptualization and practice.” Specific sites are used for certain rituals, and “successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.” The study concluded that constructing a road along any of the available routes “would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples.” Accordingly, the report recommended that the G–O road not be completed.

In 1982, the Forest Service decided not to adopt this recommendation, and it prepared a final environmental impact statement for construction of the road. The Regional Forester selected a route that avoided archeological sites and was removed as far as possible from the sites used by contemporary Indians for specific spiritual activities. Alternative routes that would have avoided the Chimney Rock area altogether were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value to American Indians. At about the same time, the Forest Service adopted a management plan allowing for the harvesting of significant amounts of timber in this area of the forest. The management plan provided for one-half mile protective zones around all the religious sites identified in the report that had been commissioned in connection with the G–O road.

After exhausting their administrative remedies, respondents—an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California—challenged both the road-building and timber-harvesting decisions in the United States District Court for the Northern District of California. . . .

After a trial, the District Court issued a permanent injunction prohibiting the Government from constructing the Chimney Rock section of the G–O road or putting the timber-harvesting management plan into effect. The court found that both actions would violate the Free Exercise Clause because they “would seriously damage the salient visual, aural, and environmental qualities of the high country.” The court also found that both proposed actions would violate the FWPCA, and that the environmental impact statements for construction of the road were deficient under the NEPA. Finally, the court concluded that both projects would breach the Government's trust responsibilities to protect water and fishing rights reserved to the Hoopa Valley Indians.

While an appeal was pending before the United States Court of Appeals for the Ninth Circuit, Congress enacted the California Wilderness Act of 1984. Under that statute, much of the property covered by the Forest Service's management plan is now designated a wilderness area, which means that commercial activities such as timber harvesting are forbidden. The statute exempts a narrow strip of land, coinciding with the Forest Service’s proposed route for the remaining segment of the G–O road, from the wilderness designation. The legislative history indicates that this exemption was adopted “to enable the completion of the Gasquet–Orleans Road project if the responsible authorities so decide.” The existing unpaved section of road, however, lies within the wilderness area and is therefore now closed to general traffic.

A panel of the Ninth Circuit affirmed in part. The panel unanimously rejected the District Court’s conclusion that the Government’s proposed actions would breach its trust responsibilities to Indians on the Hoopa Valley Reservation. The panel also vacated the injunction to the extent that it had been rendered moot by the California Wilderness Act, which now prevents timber harvesting in certain areas covered by the District Court's order. The District Court’s decision, to the extent that it rested on statutory grounds, was otherwise unanimously affirmed.

By a divided decision, the District Court's constitutional ruling was also affirmed. Relying primarily on the Forest Service's own commissioned study, the majority found that construction of the Chimney Rock section of the G–O road would have significant, though largely indirect, adverse effects on Indian religious practices. The majority concluded that the Government had failed to demonstrate a compelling interest in the completion of the road, and that it could have abandoned the road without thereby creating “a religious preserve for a single group in violation of the establishment clause.” The majority apparently applied the same analysis to logging operations that might be carried out in portions of the Chimney Rock area not covered by the California Wilderness Act.

The dissenting judge argued that certain of the adverse effects on the Indian respondents' religious practices could be eliminated by less drastic measures than a ban on building the road, and that other actual or suggested adverse effects did not pose a serious threat to the Indians' religious practices. He also concluded that the injunction against timber harvesting needed to be reconsidered in light of the California Wilderness Act: “It is not clear whether the district court would have issued an injunction based upon the development of the remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light of the Act.” . . .



The Free Exercise Clause of the First Amendment provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” It is undisputed that the Indian respondents’ beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G–O road or to engage in timber harvesting in the Chimney Rock area. We disagree.

In Bowen v. Roy, we considered a challenge to a federal statute that required the States to use Social Security numbers in administering certain welfare programs. Two applicants for benefits under these programs contended that their religious beliefs prevented them from acceding to the use of a Social Security number for their 2-year-old daughter because the use of a numerical identifier would “‘rob the spirit’ of [their] daughter and prevent her from attaining greater spiritual power.” Similarly, in this case, it is said that disruption of the natural environment caused by the G–O road will diminish the sacredness of the area in question and create distractions that will interfere with “training and ongoing religious experience of individuals using [sites within] the area for personal medicine and growth ... and as integrated parts of a system of religious belief and practice which correlates ascending degrees of personal power with a geographic hierarchy of power.” The Court rejected this kind of challenge in Roy:

The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the Roys] engage in any set form of religious observance, so [they] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter....

... The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures.

The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in Roy. In both cases, the challenged Government action would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government's action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.

We are asked to distinguish this case from Roy on the ground that the infringement on religious liberty here is “significantly greater,” or on the ground that the Government practice in Roy was “purely mechanical” whereas this case involves “a case-by-case substantive determination as to how a particular unit of land will be managed.” Similarly, we are told that this case can be distinguished from Roy because “the government action is not at some physically removed location where it places no restriction on what a practitioner may do.” The State suggests that the Social Security number in Roy “could be characterized as interfering with Roy’s religious tenets from a subjective point of view, where the government's conduct of ‘its own internal affairs’ was known to him only secondhand and did not interfere with his ability to practice his religion.” In this case, however, it is said that the proposed road will “physically destro[y] the environmental conditions and the privacy without which the [religious] practices cannot be conducted.”

These efforts to distinguish Roy are unavailing. This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in Roy, and accordingly cannot weigh the adverse effects on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual's spiritual activities should be subjected to a different constitutional analysis than the other.

Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which the Indians’ spiritual practices would become ineffectual if the G–O road were built. They rely on several cases in which this Court has sustained free exercise challenges to government programs that interfered with individuals’ ability to practice their religion. See Wisconsin v. Yoder (compulsory school-attendance law); Sherbert v. Verner (denial of unemployment benefits to applicant who refused to accept work requiring her to violate the Sabbath); Thomas v. Review Board, Indiana Employment Security Div. (denial of unemployment benefits to applicant whose religion forbade him to fabricate weapons); Hobbie (denial of unemployment benefits to religious convert who resigned position that required her to work on the Sabbath).

Even apart from the inconsistency between Roy and respondents’ reading of these cases, their interpretation will not withstand analysis. It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on Sabbath worship. This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit”: “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.”

Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices. Those practices are intimately and inextricably bound up with the unique features of the Chimney Rock area, which is known to the Indians as the “high country.” Individual practitioners use this area for personal spiritual development; some of their activities are believed to be critically important in advancing the welfare of the Tribe, and indeed, of mankind itself. The Indians use this area, as they have used it for a very long time, to conduct a wide variety of specific rituals that aim to accomplish their religious goals. According to their beliefs, the rituals would not be efficacious if conducted at other sites than the ones traditionally used, and too much disturbance of the area’s natural state would clearly render any meaningful continuation of traditional practices impossible. To be sure, the Indians themselves were far from unanimous in opposing the G–O road, and it seems less than certain that construction of the road will be so disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some religious practices is extremely grave.

Even if we assume that we should accept the Ninth Circuit’s prediction, according to which the G–O road will “virtually destroy the ... Indians’ ability to practice their religion,” the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities—from social welfare programs to foreign aid to conservation projects—will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of religious factionalism are best restrained through competition among a multiplicity of religious sects).

One need not look far beyond the present case to see why the analysis in Roy, but not respondents’ proposed extension of Sherbert and its progeny, offers a sound reading of the Constitution. Respondents attempt to stress the limits of the religious servitude that they are now seeking to impose on the Chimney Rock area of the Six Rivers National Forest. While defending an injunction against logging operations and the construction of a road, they apparently do not at present object to the area's being used by recreational visitors, other Indians, or forest rangers. Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but their own from sacred areas of the public lands. The Indian respondents insist that “[p]rivacy during the power quests is required for the practitioners to maintain the purity needed for a successful journey.” Similarly: “The practices conducted in the high country entail intense meditation and require the practitioner to achieve a profound awareness of the natural environment. Prayer seats are oriented so there is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness.” No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property. Even without anticipating future cases, the diminution of the Government's property rights, and the concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court's order permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area covering a full 27 sections (i.e. more than 17,000 acres) of public land.

The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.


Nothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen. The Government's rights to the use of its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. It is worth emphasizing, therefore, that the Government has taken numerous steps in this very case to minimize the impact that construction of the G–O road will have on the Indians' religious activities. First, the Forest Service commissioned a comprehensive study of the effects that the project would have on the cultural and religious value of the Chimney Rock area. The resulting 423–page report was so sympathetic to the Indians’ interests that it has constituted the principal piece of evidence relied on by respondents throughout this litigation.

Although the Forest Service did not in the end adopt the report's recommendation that the project be abandoned, many other ameliorative measures were planned. No sites where specific rituals take place were to be disturbed. In fact, a major factor in choosing among alternative routes for the road was the relation of the various routes to religious sites: the route selected by the Regional Forester is, he noted, “the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road would be less than all other alternatives.” Nor were the Forest Service's concerns limited to “audible intrusions.” As the dissenting judge below observed, 10 specific steps were planned to reduce the visual impact of the road on the surrounding country.

Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest, it is difficult to see how the Government could have been more solicitous. Such solicitude accords with “the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996.

Respondents, however, suggest that AIRFA goes further and in effect enacts their interpretation of the First Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the judgment below by arguing that AIRFA authorizes the injunction against completion of the G–O road. This argument is without merit. After reciting several legislative findings, AIRFA “resolves” upon the policy quoted above. A second section of the statute required an evaluation of federal policies and procedures, in consultation with native religious leaders, of changes necessary to protect and preserve the rights and practices in question. The required report dealing with this evaluation was completed and released in 1979. Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.

What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The sponsor of the bill that became AIRFA, Representative Udall, called it “a sense of Congress joint resolution,” aimed at ensuring that “the basic right of the Indian people to exercise their traditional religious practices is not infringed without a clear decision on the part of the Congress or the administrators that such religious practices must yield to some higher consideration.” Representative Udall emphasized that the bill would not “confer special religious rights on Indians,” would “not change any existing State or Federal law,” and in fact “has no teeth in it.”


The dissent proposes an approach to the First Amendment that is fundamentally inconsistent with the principles on which our decision rests. Notwithstanding the sympathy that we all must feel for the plight of the Indian respondents, it is plain that the approach taken by the dissent cannot withstand analysis. On the contrary, the path towards which it points us is incompatible with the text of the Constitution, with the precedents of this Court, and with a responsible sense of our own institutional role.

The dissent begins by asserting that the “constitutional guarantee we interpret today . . . is directed against any form of government action that frustrates or inhibits religious practice.” The Constitution, however, says no such thing. Rather, it states: “Congress shall make no law . . . prohibiting the free exercise [of religion].”

As we explained above, Bowen v. Roy rejected a First Amendment challenge to Government activities that the religious objectors sincerely believed would “rob the spirit of [their] daughter and prevent her from attaining greater spiritual power.’” The dissent now offers to distinguish that case by saying that the Government was acting there “in a purely internal manner,” whereas land-use decisions “are likely to have substantial external effects.” Whatever the source or meaning of the dissent's distinction, it has no basis in Roy. Robbing the spirit of a child, and preventing her from attaining greater spiritual power, is both a “substantial external effect” and one that is remarkably similar to the injury claimed by respondents in the case before us today. The dissent’s reading of Roy would effectively overrule that decision, without providing any compelling justification for doing so.

The dissent also misreads Wisconsin v. Yoder. The statute at issue in that case prohibited the Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by the Amish religion. The statute directly compelled the Amish to send their children to public high schools “contrary to the Amish religion and way of life.” The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with sufficient “particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.” The dissent’s out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the “impact” on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature.

Perceiving a “stress point in the longstanding conflict between two disparate cultures,” the dissent attacks us for declining to “balanc[e] these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature.” Seeing the Court as the arbiter, the dissent proposes a legal test under which it would decide which public lands are “central” or “indispensable” to which religions, and by implication which are “dispensable” or “peripheral,” and would then decide which government programs are “compelling” enough to justify “infringement of those practices.” We would accordingly be required to weigh the value of every religious belief and practice that is said to be threatened by any government program. Unless a “showing of ‘centrality’” is nothing but an assertion of centrality, the dissent thus offers us the prospect of this Courts holding that some sincerely held religious beliefs and practices are not “central” to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent's approach would require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play.


The decision of the court below, according to which the First Amendment precludes the Government from completing the G–O road or from permitting timber harvesting in the Chimney Rock area, is reversed. In order that the District Court’s injunction may be reconsidered in light of this holding, and in the light of any other relevant events that may have intervened since the injunction issued, the case is remanded for further proceedings consistent with this opinion.

Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, dissenting.

“‘[T]he Free Exercise Clause,’” the Court explains today, “‘is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’” Pledging fidelity to this unremarkable constitutional principle, the Court nevertheless concludes that even where the Government uses federal land in a manner that threatens the very existence of a Native American religion, the Government is simply not “doing” anything to the practitioners of that faith. Instead, the Court believes that Native Americans who request that the Government refrain from destroying their religion effectively seek to exact from the Government de facto beneficial ownership of federal property. These two astonishing conclusions follow naturally from the Court’s determination that federal land-use decisions that render the practice of a given religion impossible do not burden that religion in a manner cognizable under the Free Exercise Clause, because such decisions neither coerce conduct inconsistent with religious belief nor penalize religious activity. The constitutional guarantee we interpret today, however, draws no such fine distinctions between types of restraints on religious exercise, but rather is directed against any form of governmental action that frustrates or inhibits religious practice. Because the Court today refuses even to acknowledge the constitutional injury respondents will suffer, and because this refusal essentially leaves Native Americans with absolutely no constitutional protection against perhaps the gravest threat to their religious practices, I dissent.


For at least 200 years and probably much longer, the Yurok, Karok, and Tolowa Indians have held sacred an approximately 25-square-mile area of land situated in what is today the Blue Creek Unit of Six Rivers National Forest in northwestern California. As the Government readily concedes, regular visits to this area, known to respondent Indians as the “high country,” have played and continue to play a “critical” role in the religious practices and rituals of these Tribes. Those beliefs, only briefly described in the Court's opinion, are crucial to a proper understanding of respondents’ claims.

As the Forest Service’s commissioned study, the Theodoratus Report, explains, for Native Americans religion is not a discrete sphere of activity separate from all others, and any attempt to isolate the religious aspects of Indian life “is in reality an exercise which forces Indian concepts into non-Indian categories.” Thus, for most Native Americans, “[t]he area of worship cannot be delineated from social, political, cultur[al], and other areas o[f] Indian lifestyle.” A pervasive feature of this lifestyle is the individual's relationship with the natural world; this relationship, which can accurately though somewhat incompletely be characterized as one of stewardship, forms the core of what might be called, for want of a better nomenclature, the Indian religious experience. While traditional Western religions view creation as the work of a deity “who institutes natural laws which then govern the operation of physical nature,” tribal religions regard creation as an on-going process in which they are morally and religiously obligated to participate. U.S. Federal Agencies Task Force, American Indian Religious Freedom Act Report 11 (1979) (Task Force Report). Native Americans fulfill this duty through ceremonies and rituals designed to preserve and stabilize the earth and to protect humankind from disease and other catastrophes. Failure to conduct these ceremonies in the manner and place specified, adherents believe, will result in great harm to the earth and to the people whose welfare depends upon it.

In marked contrast to traditional Western religions, the belief systems of Native Americans do not rely on doctrines, creeds, or dogmas. Established or universal truths—the mainstay of Western religions—play no part in Indian faith. Ceremonies are communal efforts undertaken for specific purposes in accordance with instructions handed down from generation to generation. Commentaries on or interpretations of the rituals themselves are deemed absolute violations of the ceremonies, whose value lies not in their ability to explain the natural world or to enlighten individual believers but in their efficacy as protectors and enhancers of tribal existence. Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being. Rituals are performed in prescribed locations not merely as a matter of traditional orthodoxy, but because land, like all other living things, is unique, and specific sites possess different spiritual properties and significance. Within this belief system, therefore, land is not fungible; indeed, at the time of the Spanish colonization of the American Southwest, “all . . . Indians held in some form a belief in a sacred and indissoluble bond between themselves and the land in which their settlements were located.”

For respondent Indians, the most sacred of lands is the high country where, they believe, prehuman spirits moved with the coming of humans to the Earth. Because these spirits are seen as the source of religious power, or “medicine,” many of the tribes' rituals and practices require frequent journeys to the area. Thus, for example, religious leaders preparing for the complex of ceremonies that underlie the Tribes’ World Renewal efforts must travel to specific sites in the high country in order to attain the medicine necessary for successful renewal. Similarly, individual tribe members may seek curative powers for the healing of the sick, or personal medicine for particular purposes such as good luck in singing, hunting, or love. A period of preparation generally precedes such visits, and individuals must select trails in the sacred area according to the medicine they seek and their abilities, gradually moving to increasingly more powerful sites, which are typically located at higher altitudes. Among the most powerful of sites are Chimney Rock, Doctor Rock, and Peak 8, all of which are elevated rock outcroppings.

According to the Theodoratus Report, the qualities “of silence, the aesthetic perspective, and the physical attributes, are an extension of the sacredness of [each] particular site.” The act of medicine making is akin to meditation: the individual must integrate physical, mental, and vocal actions in order to communicate with the prehuman spirits. As a result, “successful use of the high country is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.” Although few Tribe members actually make medicine at the most powerful sites, the entire Tribe’s welfare hinges on the success of the individual practitioners.

Beginning in 1972, the Forest Service began preparing a multiple-use management plan for the Blue Creek Unit. The plan’s principal features included the harvesting of 733 million board feet of Douglas fir over an 80 year period and the completion of a six-mile segment of paved road running between two northern California towns, Gasquet and Orleans (the G–O road). The road's primary purpose was to provide a route for hauling the timber harvested under the management plan; in addition, it would enhance public access to the Six Rivers and other national forests, and allow for more efficient maintenance and fire control by the Forest Service itself. In the mid–1970’s, the Forest Service circulated draft environmental impact statements evaluating the effects of several proposed routes for the final segment of the G–O road, including at least two that circumnavigated the high country altogether. Ultimately, however, the Service settled on a route running along the Chimney Rock Corridor, which traverses the Indians' sacred lands.

Respondent Indians brought suit to enjoin implementation of the plan, alleging that the road construction and timber harvesting would impermissibly interfere with their religious practices in violation of the Free Exercise Clause of the First Amendment. Following a trial, the District Court granted the requested injunctive relief. The court found that “use of the high country is essential to [respondents'] ‘World Renewal’ ceremonies ... which constitute the heart of the Northwest Indian religious belief system,” and that “‘[i]ntrusions on the sanctity of the Blue Creek high country are . . . potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.’” Concluding that these burdens on respondents’ religious practices were sufficient to trigger the protections of the Free Exercise Clause, the court found that the interests served by the G–O road and the management plan were insufficient to justify those burdens. In particular, the court found that the road would not improve access to timber resources in the Blue Creek Unit and indeed was unnecessary to the harvesting of that timber; that it would not significantly improve the administration of the Six Rivers National Forest; and that it would increase recreational access only marginally, and at the expense of the very pristine environment that makes the area suitable for primitive recreational use in the first place. The court further found that the unconnected segments of the road had independent utility, and that although completion of the Chimney Rock segment would reduce timber-hauling costs, it would not generate new jobs but would instead merely shift work from one area of the region to another. Finally, in enjoining the proposed harvesting activities, the court found that the Blue Creek Unit’s timber resources were but a small fraction of those located in the entire National Forest and that the local timber industry would not suffer seriously if access to this fraction were foreclosed.

While the case was pending on appeal before the Court of Appeals for the Ninth Circuit, Congress passed the California Wilderness Act of 1984, which designates most of the Blue Creek Unit a wilderness area, and thus precludes logging and all other commercial activities in most of the area covered by the Forest Service’s management plan. Thereafter, the Court of Appeals affirmed the District Court’s determination that the proposed harvesting and construction activities violated respondents’ constitutional rights. Recognizing that the high country is “indispensable” to the religious lives of the approximately 5,000 Tribe members who reside in the area, the court concluded “that the proposed government operations would virtually destroy the ... Indians' ability to practice their religion.” Like the lower court, the Court of Appeals found the Government's interests in building the road and permitting limited timber harvesting—interests which of course were considerably undermined by passage of the California Wilderness Act—did not justify the destruction of respondents’ religion.


The Court does not for a moment suggest that the interests served by the G–O road are in any way compelling, or that they outweigh the destructive effect construction of the road will have on respondents' religious practices. Instead, the Court embraces the Government's contention that its prerogative as landowner should always take precedence over a claim that a particular use of federal property infringes religious practices. Attempting to justify this rule, the Court argues that the First Amendment bars only outright prohibitions, indirect coercion, and penalties on the free exercise of religion. All other “incidental effects of government programs,” it concludes, even those “which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs,” simply do not give rise to constitutional concerns. Since our recognition nearly half a century ago that restraints on religious conduct implicate the concerns of the Free Exercise Clause, see Prince v. Massachusetts, we have never suggested that the protections of the guarantee are limited to so narrow a range of governmental burdens. The land-use decision challenged here will restrain respondents from practicing their religion as surely and as completely as any of the governmental actions we have struck down in the past, and the Court’s efforts simply to define away respondents’ injury as nonconstitutional are both unjustified and ultimately unpersuasive.


The Court ostensibly finds support for its narrow formulation of religious burdens in our decisions in Hobbie v. Unemployment Appeals Comm’n, Thomas v. Review Bd., Indiana Employment Security Division, and Sherbert v. Verner. In those cases, the laws at issue forced individuals to choose between adhering to specific religious tenets and forfeiting unemployment benefits on the one hand, and accepting work repugnant to their religious beliefs on the other. The religions involved, therefore, lent themselves to the coercion analysis the Court espouses today, for they proscribed certain conduct such as munitions work (Thomas) or working on Saturdays (Sherbert, Hobbie) that the unemployment benefits laws effectively compelled. In sustaining the challenges to these laws, however, we nowhere suggested that such coercive compulsion exhausted the range of religious burdens recognized under the Free Exercise Clause.

Indeed, in Wisconsin v. Yoder, we struck down a state compulsory school attendance law on free exercise grounds not so much because of the affirmative coercion the law exerted on individual religious practitioners, but because of “the impact that compulsory high school attendance could have on the continued survival of Amish communities.” Like respondents here, the Amish view life as pervasively religious and their faith accordingly dictates their entire lifestyle. Detailed as their religious rules are, however, the parents in Yoder did not argue that their religion expressly proscribed public education beyond the eighth grade; rather, they objected to the law because “the values ... of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion.” By exposing Amish children “to a ‘worldly’ influence in conflict with their beliefs,” and by removing those children “from their community, physically and emotionally, during the crucial and formative adolescent period of life” when Amish beliefs are inculcated, the compulsory school law posed “a very real threat of undermining the Amish community and religious practice.” Admittedly, this threat arose from the compulsory nature of the law at issue, but it was the “impact” on religious practice itself, not the source of that impact, that led us to invalidate the law.

I thus cannot accept the Court’s premise that the form of the government’s restraint on religious practice, rather than its effect, controls our constitutional analysis. Respondents here have demonstrated that construction of the G–O road will completely frustrate the practice of their religion, for as the lower courts found, the proposed logging and construction activities will virtually destroy respondents’ religion, and will therefore necessarily force them into abandoning those practices altogether. Indeed, the Government’s proposed activities will restrain religious practice to a far greater degree here than in any of the cases cited by the Court today. None of the religious adherents in Hobbie, Thomas, and Sherbert, for example, claimed or could have claimed that the denial of unemployment benefits rendered the practice of their religions impossible; at most, the challenged laws made those practices more expensive. Here, in stark contrast, respondents have claimed—and proved—that the desecration of the high country will prevent religious leaders from attaining the religious power or medicine indispensable to the success of virtually all their rituals and ceremonies. Similarly, in Yoder the compulsory school law threatened to “undermin[e] the Amish community and religious practice,” and thus to force adherents to “abandon belief . . . or . . . to migrate to some other and more tolerant region.” Here the threat posed by the desecration of sacred lands that are indisputably essential to respondents' religious practices is both more direct and more substantial than that raised by a compulsory school law that simply exposed Amish children to an alien value system. And of course respondents here do not even have the option, however unattractive it might be, of migrating to more hospitable locales; the site-specific nature of their belief system renders it nontransportable.

Ultimately, the Court’s coercion test turns on a distinction between governmental actions that compel affirmative conduct inconsistent with religious belief, and those governmental actions that prevent conduct consistent with religious belief. In my view, such a distinction is without constitutional significance. The crucial word in the constitutional text, as the Court itself acknowledges, is “prohibit,” a comprehensive term that in no way suggests that the intended protection is aimed only at governmental actions that coerce affirmative conduct. Nor does the Court’s distinction comport with the principles animating the constitutional guarantee: religious freedom is threatened no less by governmental action that makes the practice of one’s chosen faith impossible than by governmental programs that pressure one to engage in conduct inconsistent with religious beliefs. The Court attempts to explain the line it draws by arguing that the protections of the Free Exercise Clause “cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development,” for in a society as diverse as ours, the Government cannot help but offend the “religious needs and desires” of some citizens. While I agree that governmental action that simply offends religious sensibilities may not be challenged under the Clause, we have recognized that laws that affect spiritual development by impeding the integration of children into the religious community or by increasing the expense of adherence to religious principles—in short, laws that frustrate or inhibit religious practice—trigger the protections of the constitutional guarantee. Both common sense and our prior cases teach us, therefore, that governmental action that makes the practice of a given faith more difficult necessarily penalizes that practice and thereby tends to prevent adherence to religious belief. The harm to the practitioners is the same regardless of the manner in which the government restrains their religious expression, and the Court’s fear that an “effects” test will permit religious adherents to challenge governmental actions they merely find “offensive” in no way justifies its refusal to recognize the constitutional injury citizens suffer when governmental action not only offends but actually restrains their religious practices. Here, respondents have demonstrated that the Government’s proposed activities will completely prevent them from practicing their religion, and such a showing, no less than those made out in Hobbie, Thomas, Sherbert, and Yoder, entitles them to the protections of the Free Exercise Clause.


Nor can I agree with the Court’s assertion that respondents’ constitutional claim is foreclosed by our decision in Bowen v. Roy. There, applicants for certain welfare benefits objected to the use of a Social Security number in connection with the administration of their 2-year-old daughter's application for benefits, contending that such use would “rob the [child's] spirit” and thus interfere with her spiritual development. In rejecting that challenge, we stated that “[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Accordingly, we explained that Roy could

no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures.

Today the Court professes an inability to differentiate Roy from the present case, suggesting that “[t]he building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number.” I find this inability altogether remarkable. In Roy, we repeatedly stressed the “internal” nature of the Government practice at issue: noting that Roy objected to “the widespread use of the social security number by the federal or state governments in their computer systems,” we likened the use of such recordkeeping numbers to decisions concerning the purchase of office equipment. When the Government processes information, of course, it acts in a purely internal manner, and any free exercise challenge to such internal recordkeeping in effect seeks to dictate how the Government conducts its own affairs.

Federal land-use decisions, by contrast, are likely to have substantial external effects that government decisions concerning office furniture and information storage obviously will not, and they are correspondingly subject to public scrutiny and public challenge in a host of ways that office equipment purchases are not. Indeed, in the American Indian Religious Freedom Act (AIRFA), Congress expressly recognized the adverse impact land-use decisions and other governmental actions frequently have on the site-specific religious practices of Native Americans, and the Act accordingly directs agencies to consult with Native American religious leaders before taking actions that might impair those practices. Although I agree that the Act does not create any judicially enforceable rights, the absence of any private right of action in no way undermines the statute’s significance as an express congressional determination that federal land management decisions are not “internal” Government “procedures,” but are instead governmental actions that can and indeed are likely to burden Native American religious practices. That such decisions should be subject to constitutional challenge, and potential constitutional limitations, should hardly come as a surprise.

The Court today, however, ignores Roy’s emphasis on the internal nature of the Government practice at issue there, and instead construes that case as further support for the proposition that governmental action that does not coerce conduct inconsistent with religious faith simply does not implicate the concerns of the Free Exercise Clause. That such a reading is wholly untenable, however, is demonstrated by the cruelly surreal result it produces here: governmental action that will virtually destroy a religion is nevertheless deemed not to “burden” that religion. . . .


In the final analysis, the Court’s refusal to recognize the constitutional dimension of respondents’ injuries stems from its concern that acceptance of respondents’ claim could potentially strip the Government of its ability to manage and use vast tracts of federal property. In addition, the nature of respondents' site-specific religious practices raises the specter of future suits in which Native Americans seek to exclude all human activity from such areas. These concededly legitimate concerns lie at the very heart of this case, which represents yet another stress point in the longstanding conflict between two disparate cultures—the dominant Western culture, which views land in terms of ownership and use, and that of Native Americans, in which concepts of private property are not only alien, but contrary to a belief system that holds land sacred. Rather than address this conflict in any meaningful fashion, however, the Court disclaims all responsibility for balancing these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature. Such an abdication is more than merely indefensible as an institutional matter: by defining respondents’ injury as “nonconstitutional,” the Court has effectively bestowed on one party to this conflict the unilateral authority to resolve all future disputes in its favor, subject only to the Court's toothless exhortation to be “sensitive” to affected religions. In my view, however, Native Americans deserve—and the Constitution demands—more than this.

Prior to today’s decision, several Courts of Appeals had attempted to fashion a test that accommodates the competing “demands” placed on federal property by the two cultures. Recognizing that the Government normally enjoys plenary authority over federal lands, the Courts of Appeals required Native Americans to demonstrate that any land-use decisions they challenged involved lands that were “central” or “indispensable” to their religious practices. Although this requirement limits the potential number of free exercise claims that might be brought to federal land management decisions, and thus forestalls the possibility that the Government will find itself ensnared in a host of Lilliputian lawsuits, it has been criticized as inherently ethnocentric, for it incorrectly assumes that Native American belief systems ascribe religious significance to land in a traditionally Western hierarchical manner. It is frequently the case in constitutional litigation, however, that courts are called upon to balance interests that are not readily translated into rough equivalents. At their most absolute, the competing claims that both the Government and Native Americans assert in federal land are fundamentally incompatible, and unless they are tempered by compromise, mutual accommodation will remain impossible.

I believe it appropriate, therefore, to require some showing of “centrality” before the Government can be required either to come forward with a compelling justification for its proposed use of federal land or to forego that use altogether. “Centrality,” however, should not be equated with the survival or extinction of the religion itself. In Yoder, for example, we treated the objection to the compulsory school attendance of adolescents as “central” to the Amish faith even though such attendance did not prevent or otherwise render the practice of that religion impossible, and instead simply threatened to “undermine” that faith. Because of their perceptions of and relationship with the natural world, Native Americans consider all land sacred. Nevertheless, the Theodoratus Report reveals that respondents here deemed certain lands more powerful and more directly related to their religious practices than others. Thus, in my view, while Native Americans need not demonstrate, as respondents did here, that the Government's land-use decision will assuredly eradicate their faith, I do not think it is enough to allege simply that the land in question is held sacred. Rather, adherents challenging a proposed use of federal land should be required to show that the decision poses a substantial and realistic threat of frustrating their religious practices. Once such a showing is made, the burden should shift to the Government to come forward with a compelling state interest sufficient to justify the infringement of those practices.

The Court today suggests that such an approach would place courts in the untenable position of deciding which practices and beliefs are “central” to a given faith and which are not, and invites the prospect of judges advising some religious adherents that they “misunderstand their own religious beliefs.” In fact, however, courts need not undertake any such inquiries: like all other religious adherents, Native Americans would be the arbiters of which practices are central to their faith, subject only to the normal requirement that their claims be genuine and sincere. The question for the courts, then, is not whether the Native American claimants understand their own religion, but rather whether they have discharged their burden of demonstrating, as the Amish did with respect to the compulsory school law in Yoder, that the land-use decision poses a substantial and realistic threat of undermining or frustrating their religious practices. Ironically, the Court’s apparent solicitude for the integrity of religious belief and its desire to forestall the possibility that courts might second-guess the claims of religious adherents leads to far greater inequities than those the Court postulates: today's ruling sacrifices a religion at least as old as the Nation itself, along with the spiritual well-being of its approximately 5,000 adherents, so that the Forest Service can build a 6–mile segment of road that two lower courts found had only the most marginal and speculative utility, both to the Government itself and to the private lumber interests that might conceivably use it.

Similarly, the Court’s concern that the claims of Native Americans will place “religious servitudes” upon vast tracts of federal property cannot justify its refusal to recognize the constitutional injury respondents will suffer here. It is true, as the Court notes, that respondents' religious use of the high country requires privacy and solitude. The fact remains, however, that respondents have never asked the Forest Service to exclude others from the area. Should respondents or any other group seek to force the Government to protect their religious practices from the interference of private parties, such a demand would implicate not only the concerns of the Free Exercise Clause, but also those of the Establishment Clause as well. That case, however, is most assuredly not before us today, and in any event cannot justify the Court's refusal to acknowledge that the injuries respondents will suffer as a result of the Government's proposed activities are sufficient to state a constitutional cause of action.


Today, the Court holds that a federal land-use decision that promises to destroy an entire religion does not burden the practice of that faith in a manner recognized by the Free Exercise Clause. Having thus stripped respondents and all other Native Americans of any constitutional protection against perhaps the most serious threat to their age-old religious practices, and indeed to their entire way of life, the Court assures us that nothing in its decision “should be read to encourage governmental insensitivity to the religious needs of any citizen.”I find it difficult, however, to imagine conduct more insensitive to religious needs than the Government's determination to build a marginally useful road in the face of uncontradicted evidence that the road will render the practice of respondents’ religion impossible. Nor do I believe that respondents will derive any solace from the knowledge that although the practice of their religion will become “more difficult” as a result of the Government’s actions, they remain free to maintain their religious beliefs. Given today’s ruling, that freedom amounts to nothing more than the right to believe that their religion will be destroyed. The safeguarding of such a hollow freedom not only makes a mockery of the “policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise their traditional religions,” it fails utterly to accord with the dictates of the First Amendment.

I dissent.

United States v. Lee

455 U.S. 252 (1982)

Chief Justice BURGER delivered the opinion of the Court.

We noted probable jurisdiction to determine whether imposition of social security taxes is unconstitutional as applied to persons who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds. The District Court concluded that the Free Exercise Clause prohibits forced payment of social security taxes when payment of taxes and receipt of benefits violate the taxpayer's religion. We reverse.


Appellee, a member of the Old Order Amish, is a farmer and carpenter. From 1970 to 1977, appellee employed several other Amish to work on his farm and in his carpentry shop. He failed to file the quarterly social security tax returns required of employers, withhold social security tax from his employees, or pay the employer's share of social security taxes.

In 1978, the Internal Revenue Service assessed appellee in excess of $27,000 for unpaid employment taxes; he paid $91-the amount owed for the first quarter of 1973-and then sued in the United States District Court for the Western District of Pennsylvania for a refund, claiming that imposition of the social security taxes violated his First Amendment free exercise rights and those of his Amish employees.

The District Court held the statutes requiring appellee to pay social security and unemployment insurance taxes unconstitutional as applied. The court noted that the Amish believe it sinful not to provide for their own elderly and needy and therefore are religiously opposed to the national social security system. The court also accepted appellee's contention that the Amish religion not only prohibits the acceptance of social security benefits, but also bars all contributions by Amish to the social security system. The District Court observed that in light of their beliefs, Congress has accommodated self-employed Amish and self-employed members of other religious groups with similar beliefs by providing exemptions from social security taxes. 26 U.S.C. § 1402(g). The court's holding was based on both the exemption statute for the self-employed and the First Amendment; appellee and others “who fall within the carefully circ*mscribed definition provided in 1402(g) are relieved from paying the employer's share of [social security taxes] as it is an unconstitutional infringement upon the free exercise of their religion.”

Direct appeal from the judgment of the District Court was taken pursuant to 28 U.S.C. § 1252.


The exemption provided by § 1402(g) is available only to self-employed individuals and does not apply to employers or employees. Consequently, appellee and his employees are not within the express provisions of § 1402(g). Thus any exemption from payment of the employer's share of social security taxes must come from a constitutionally required exemption.


The preliminary inquiry in determining the existence of a constitutionally required exemption is whether the payment of social security taxes and the receipt of benefits interferes with the free exercise rights of the Amish. The Amish believe that there is a religiously based obligation to provide for their fellow members the kind of assistance contemplated by the social security system. Although the Government does not challenge the sincerity of this belief, the Government does contend that payment of social security taxes will not threaten the integrity of the Amish religious belief or observance. It is not within “the judicial function and judicial competence,” however, to determine whether appellee or the Government has the proper interpretation of the Amish faith; “[c]ourts are not arbiters of scriptural interpretation.”We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.

The conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, however, and not the end of the inquiry. Not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.


Because the social security system is nationwide, the governmental interest is apparent. The social security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees. The social security system is by far the largest domestic governmental program in the United States today, distributing approximately $11 billion monthly to 36 million Americans. The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system. “[W]idespread individual voluntary coverage under social security . . . would undermine the soundness of the social security program.” Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government's interest in assuring mandatory and continuous participation in and contribution to the social security system is very high.

The remaining inquiry is whether accommodating the Amish belief will unduly interfere with fulfillment of the governmental interest. In Braunfeld v. Brown, this Court noted that “to make accommodation between the religious action and an exercise of state authority is a particularly delicate task . . . because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing ... prosecution.” The difficulty in attempting to accommodate religious beliefs in the area of taxation is that “we are a cosmopolitan nation made up of people of almost every conceivable religious preference.” The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions. To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, but there is a point at which accommodation would “radically restrict the operating latitude of the legislature.”

Unlike the situation presented in Wisconsin v. Yoder, it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs. The obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes; the difference-in theory at least-is that the social security tax revenues are segregated for use only in furtherance of the statutory program. There is no principled way, however, for purposes of this case, to distinguish between general taxes and those imposed under the Social Security Act. If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief. Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.


Congress has accommodated, to the extent compatible with a comprehensive national program, the practices of those who believe it a violation of their faith to participate in the social security system. In § 1402(g) Congress granted an exemption, on religious grounds, to self-employed Amish and others. Confining the § 1402(g) exemption to the self-employed provided for a narrow category which was readily identifiable. Self-employed persons in a religious community having its own “welfare” system are distinguishable from the generality of wage earners employed by others.

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Congress drew a line in § 1402(g), exempting the self-employed Amish but not all persons working for an Amish employer. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise.

Accordingly, the judgment of the District Court is reversed, and the case is remanded for proceedings consistent with this opinion.

Justice STEVENS, concurring in the judgment.

The clash between appellee's religious obligation and his civic obligation is irreconcilable. He must violate either an Amish belief or a federal statute. According to the Court, the religious duty must prevail unless the Government shows that enforcement of the civic duty “is essential to accomplish an overriding governmental interest.” That formulation of the constitutional standard suggests that the Government always bears a heavy burden of justifying the application of neutral general laws to individual conscientious objectors. In my opinion, it is the objector who must shoulder the burden of demonstrating that there is a unique reason for allowing him a special exemption from a valid law of general applicability.

Congress already has granted the Amish a limited exemption from social security taxes. See 26 U.S.C. § 1402(g). As a matter of administration, it would be a relatively simple matter to extend the exemption to the taxes involved in this case. As a matter of fiscal policy, an enlarged exemption probably would benefit the social security system because the nonpayment of these taxes by the Amish would be more than offset by the elimination of their right to collect benefits. In view of the fact that the Amish have demonstrated their capacity to care for their own, the social cost of eliminating this relatively small group of dedicated believers would be minimal. Thus, if we confine the analysis to the Government's interest in rejecting the particular claim to an exemption at stake in this case, the constitutional standard as formulated by the Court has not been met.

The Court rejects the particular claim of this appellee, not because it presents any special problems, but rather because of the risk that a myriad of other claims would be too difficult to process. The Court overstates the magnitude of this risk because the Amish claim applies only to a small religious community with an established welfare system of its own. Nevertheless, I agree with the Court’s conclusion that the difficulties associated with processing other claims to tax exemption on religious grounds justify a rejection of this claim. I believe, however, that this reasoning supports the adoption of a different constitutional standard than the Court purports to apply.

The Court’s analysis supports a holding that there is virtually no room for a “constitutionally required exemption” on religious grounds from a valid tax law that is entirely neutral in its general application. Because I agree with that holding, I concur in the judgment.

Baumgartner v. First Church of Christ, Scientist

490 N.E.2d 1319 (Ill. App. 1986)

Presiding Judge Buckley delivered the opinion of the court:

Plaintiff, Mary Baumgartner, as executor of the estate of John Baumgartner, deceased, brought an action for wrongful death against the First Church of Christ, Scientist (“Mother Church”), Ruth L. Tanner, and the Northern Trust Company, as executor of the estate of Paul A. Erickson, deceased. Plaintiff’s action arises out of Christian Science treatment rendered to decedent by Tanner and Erickson. Defendants filed a motion to strike and dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure. The motion was granted and plaintiff appeals. For the reasons set forth below, we affirm.

Initially, we observe that Christian Science is a widely known religion and courts will take judicial notice of its general teachings. Its basic premise, as plaintiff acknowledges in her pleading, is that physical disease can be healed by spiritual means alone. As stated in an article on Christian Science from the Encyclopedia Britannica:

Christian Science is a religious denomination founded in the United States in 1879 by Mary Baker Eddy (1821-1910), author of the book that contains the definitive statement of its teaching, Science and Health with Key to the Scriptures. About one-third of its nearly 3,000 congregations are located in 56 countries outside the United States, with membership concentrated in areas with strong Protestant traditions. It is widely known for its practice of spiritual healing, an emphasis best understood in relation to its historical background and teaching.

The cure of disease through prayer is seen as a necessary element in a full redemption from the flesh. Church historian Karl Holl summarizes the concept of treatment, or prayer, in Christian Science as ‘a silent yielding of self to God, an ever closer relationship to God, until His omnipresence and love are felt effectively by man,’ and he distinguishes this decisively from willpower or mental suggestion.

. . . . Plaintiff’s fourth amended complaint alleged that on October 13, 1974, the decedent, plaintiff’s husband, contracted acute prostatitis. The illness manifested itself through severe pain in the groin area and the inability to urinate. Decedent immediately contacted Paul Erickson and advised him of his illness. Decedent requested that Erickson provide him with Christian Science treatment. Erickson, a Christian Science practitioner, had provided decedent with Christian Science healing on several prior occasions. He was also plaintiff’s teacher and advisor on Christian Science. Erickson had been instructed by the Mother Church in the methods of Christian Science healing and was listed in The Christian Science Journal, a publication of the organization. By listing practitioners in the journal, the Mother Church certifies their training and competence.

Erickson came to decedent’s home shortly after being contacted and administered hot baths and Christian Science treatment. Erickson also “massaged and manipulated” decedent’s prostate gland. For the next several days, decedent’s condition remained unchanged. Erickson therefore contacted defendant Ruth Tanner and directed her to go to decedent's home to assist in rendering Christian Science healing. Tanner was a Christian Science nurse certified by the Department of Care of the Mother Church and was also listed in its journal. Tanner proceeded to provide Christian Science treatment to decedent. Erickson called daily to check on decedent's condition and he visited frequently to provide healing.

Decedent’s condition began to deteriorate. Plaintiff alleges that decedent decided he wanted medical treatment for his illness and that he no longer wished to be treated by Tanner and Erickson. She further alleges that when Erickson was advised of this request, he told decedent that he would die if a medical doctor was called and assured decedent that he was being cured by Christian Science healing. Decedent and plaintiff did not call in a medical doctor and instead continued with the Christian Science healing provided by Tanner and Erickson. Decedent's condition further deteriorated and he died on October 23, 1974, 10 days after he became ill.

At the time of his death, decedent had been a wealthy inventor and industrialist. He was survived by plaintiff and his two minor children. The complaint alleges that prior to his death, decedent changed his will at the insistence of Erickson and made the Mother Church a residual beneficiary of approximately one-half of his multi-million dollar estate.

Plaintiff thereafter initiated a wrongful death action against the Mother Church, Tanner, and Erickson, who is now deceased. The pleading before this court is plaintiff’s fourth amended complaint which contains five counts. Count I alleges ordinary negligence, count II alleges intentional/reckless misconduct, count III seeks recovery for medical malpractice and count IV sets forth a Christian Science malpractice claim. Count V is directed only against the Mother Church for a constructive trust. The trial court dismissed the entire fourth amended complaint for failure to state a cause of action. The dismissal was based on first amendment grounds. On appeal, plaintiff challenges the dismissal of all five counts. The issues raised on appeal are matters of first impression in this State.


We first address the propriety of the trial court’s dismissal of the count in plaintiff's complaint seeking recovery for medical malpractice. This claim is based on the premise that Erickson and Tanner were under a legal duty to comply with the standards of diagnosis and care that are imposed upon members of the medical profession even though they had been retained by decedent for Christian Science treatment. We find no merit to plaintiff’s claim. Legislative and judicial distinctions between medical and spiritual treatment belie the existence of any such duty.

Our state legislature recognized the fundamental difference between spiritual treatment of human ailments and medical treatment when it enacted the Medical Practice Act. This Act exempts religious treatment from licensing, testing and other regulation. Specifically, section 4474 provides that the Act does not apply to “persons treating human ailments by prayer or spiritual means as an exercise or enjoyment of religious freedom.” Similarly, nurses who provide “care of the sick where treatment is by prayer or spiritual means” are expressly exempt from the requirement that all nurses be licensed. It follows that persons in these categories, exempt as a matter of public policy from the statutory framework which sets up standards for the medical profession, may not be held liable for failing to comply with medical standards to which they are not subject.

The argument that Christian Science practitioners should be held to medical standards has been expressly rejected by the New Hampshire Supreme Court. There, the court affirmed a directed verdict for a Christian Science practitioner where the plaintiff sought to recover for medical malpractice. In so holding, the court noted that the plaintiff knew that the defendant was not a member of the regular school of physicians and did not practice according to its methods, but instead was a Christian Scientist and practiced according to the methods recognized by such healers. . . . .

Our supreme court [in Dolan v. Galluzzo] has adopted the key principle upon which the Spead decision was predicated: that a plaintiff may not successfully establish a standard of care for one health care specialty offering the testimony of someone who practices a different specialty. In Dolan, it was held that the standard of care for a podiatrist may not be established through a physician or surgeon.

Here, plaintiff does not allege that Erickson or Tanner held themselves out to decedent as medical practitioners, nor that decedent expected or asked them to render medical treatment. As plaintiff concedes in her complaint, followers of Christian Science do not use medical aid to treat illness, but instead rely solely upon spiritual means. Decedent specifically requested Christian Science treatment when he became ill and could not have reasonably expected anything other than spiritual healing from Tanner and Erickson. There is no allegation that decedent was incompetent prior to his death. Viewing these facts and circ*mstances in light of the authorities cited above, we find that plaintiff cannot state a cause of action for medical malpractice.


We next consider plaintiff’s count based on a theory of Christian Science malpractice. Specifically, plaintiff alleges that Erickson and Tanner deviated from the standard of care of an ordinary Christian Science practitioner and nurse when they treated decedent. We find no basis for recovery under such a theory.

The United States Constitution dictates that the only entity with the authority and power to determine whether there has been a deviation from “true” Christian Science practice is the Christian Science Church itself. As the United States Supreme Court has held, the first amendment bars the judiciary from considering whether certain religious conduct conforms to the standards of a particular religious group. . . .

[A]djudication of the present case would require the court to extensively investigate and evaluate religious tenets and doctrines: first, to establish the standard of care of an “ordinary” Christian Science practitioner; and second, to determine whether Erickson and Tanner deviated from those standards. We believe that the first amendment precludes such an intrusive inquiry by the civil courts into religious matters.

At oral argument before this court, counsel for plaintiff acknowledged that any inquiry into Christian Science beliefs would be precluded by the first amendment. He urged, however, that defendants’ conduct can be objectively evaluated by a court of law without such an inquiry. In support of this contention, counsel relied on Article VIII, par. 23 of the Manual of The Mother Church which provides that “[i]f a member of this Church has a patient whom he does not heal, and whose case he cannot fully diagnose, he may consult with an M.D. on the anatomy involved.” Significantly, this section does not require that a practitioner must consult with a medical doctor-it merely provides that he may do so. For a court of law to determine whether Erickson and Tanner violated the above tenet, it would first need to interpret the permissive language of this religious doctrine promulgated by the Mother Church. . . .

Plaintiff in her brief relies on Prince v. Massachusetts, Cox v. New Hampshire, and Reynolds v. United States. In Prince, it was held that the use of children to sell church literature violated a statute prohibiting child labor. In Cox, the court held that parades for religious purposes did not excuse a church group from obtaining a permit. Reynolds held that the religious practice of polygamy violated state law.

We find each of the above cases distinguishable from the present case. In each instance, the wrongful conduct, although religiously motivated, could be analyzed without first evaluating the tenets of a particular religion. Moreover, the polygamous marriage bans were upheld in Reynolds because the practice consisted of overt acts determined to be deleterious to public morals and welfare. No such overt, immoral activity is involved in this case. . . .

We find none of the above authorities cited by plaintiff to be persuasive analogy. The question of whether or not defendants deviated from the standard of care of an ordinary Christian Scientist is not a justiciable controversy. Accordingly, the trial court properly dismissed plaintiff's count seeking recovery for Christian Science malpractice.


Next, we consider whether the trial court correctly dismissed plaintiff’s count based on ordinary negligence. Plaintiff alleged that Erickson and Tanner were negligent because they failed to withdraw from treating decedent when requested to do so; failed to withdraw when they knew or should have known Christian Science treatment was not curing decedent; failed to consult a medical doctor when they knew or should have known Christian Science treatment was not curing decedent's illness; failed to consult a medical doctor when requested to do so and when they knew decedent was going to die without medical treatment; advised decedent not to obtain medical care; coerced decedent into not calling in a medical doctor; misrepresented to decedent that the Christian Science treatment was working; and breached a fiduciary relationship.

To set forth a cause of action sounding in negligence, a plaintiff must allege the existence of a duty of reasonable care owed plaintiff by defendant, breach of that duty and injury proximately resulting from the breach. The existence of a duty is a matter of law, to be decided by the court. In deciding whether a duty exists, the court is to consider the reasonable foreseeability of the injury, public policy and social requirements, the magnitude of the burden of guarding against injury and the consequences of placing that burden upon the defendant.

Applying these principles to the case at hand, we find that plaintiff’s negligence claim must fail. For the court to determine whether defendants breached any duty owed to decedent would require a searching inquiry into Christian Science beliefs and the validity of such beliefs. As established above, such an inquiry is precluded by the first amendment.

We recognize that plaintiff alleges in her complaint that Erickson and Tanner persuaded decedent and his family not to call in a medical doctor through “coercion” and “intimidation.” Such allegations, however, are merely conclusionary. Plaintiff does not allege that decedent was not rational or mentally incompetent. Nor does she allege that decedent or herself was physically imprisoned by defendants and thus unable to contact a physician. The facts as alleged by plaintiff fail to show that the Christian Science treatment provided to decedent, a competent adult, was not a matter of his own choice and free will at all times prior to his death. Our supreme court has made it clear that a competent adult has the right under the first amendment to refuse medical treatment when it conflicts with his religious beliefs.

Accordingly, we conclude that plaintiff has failed to state a cause of action for negligence and that the trial court properly dismissed plaintiff's negligence count. . . .

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Swann v. Pack

527 S.W.2d 99 (1975)

Henry, Justice.

We granted certiorari in this case to determine whether the State of Tennessee may enjoin a religious group from handling snakes as a part of its religious service and in accordance with its Articles of Faith, on the basis of such action constituting a public nuisance.

The Circuit Court at Newport permanently enjoined the defendant, Pack, Pastor of The Holiness Church of God in Jesus Name, of Newport, and one of his Elders from “handling, displaying or exhibiting dangerous and poisonous snakes', predicating its action primarily upon a finding that ‘the handling of said dangerous and poisonous snakes is in violation of T.C.A. s 39—2208 and that said practice is done in the presence of children and other people attending church services.” . . . .


To place this controversy in proper perspective, we note the pleadings and trial proceedings. On April 14, 1973, the District Attorney General of the Second Judicial Circuit filed his petition in the Circuit Court at Newport charging that respondents Pack and certain designated Elders, including Albert Ball, had been handling snakes as a part of their church service ‘for the last two years’; that this was one of the rituals of the church to test the faith and sincerity of belief of church members; that Pastor Pack ‘has become anointed’, along with other members of the church and has ‘advanced’ to using deadly drugs, to wit, strychnine; that at a church service on April 7, 1973 snakes were handled and an ‘Indian boy was bitten and his arm became swollen’; that two named church members drank strychnine and died as a result; that, at the funeral of one of these, Pastor Pack, and others, handled snakes; and that Pastor Pack has proclaimed his intentions to continue these practices. The prayer was for an injunction enjoining respondents ‘from handling, displaying, or exhibiting poisonous snakes or taking or using strychnine or other poisonous medicines.’ In the alternative, and upon failure of the named defendants to cease and desist, petitioner prayed that the church be padlocked as a public nuisance.

By order entered April 21, 1973, the trial court [found a violation of s 39—2208 and enjoined the defendants] “from handling poisonous snakes or using deadly poisons in any church service being conducted in said church or at Any other place in co*cke County, Tennessee until further orders of the Court.”

Why the judge of a court having personal jurisdiction of the parties and state-wide jurisdiction of the subject matter elected to permit these defendants to practice snake handling as a part of their religious worship in ninety-four counties of the state and deny them the same identical right in the remaining county is not clear.

Moreover the record reflects that immediately following the above quoted language the trial judge added, in his own handwriting, the following: “However, any person who wishes to swallow strychnine or other poison may do so if he does not make it available to any other persons.”

The further result of this order was that defendants could not practice snake handling, from which death might ensue but could drink strychnine, a highly poisonous drug.

The record reflects no explanation for this incongruity.

Thereafter, the District Attorney General filed a second petition alleging stepped up activity, at the Holiness Church. On July 1, 1973, ‘a national convention for the snake handlers’ cult of the United States' was held and ‘many dangerous and poisonous snakes were displayed’ and one of the handlers had been bitten and was in a Chattanooga hospital recuperating. Services were conducted on July 3 and July 7, 1973, and again snakes were handled. All this led the District Attorney General to conclude and charge that co*cke County was in imminent danger and likely to ‘become the snake handling capital of the world.’

In response to this citation, respondents were held in contempt, fined and sentenced, but sentences were suspended in each case, ‘until the said defendant handles poisonous snakes at said church are (sic) any other place in co*cke County, Tennessee.’

Up to this point defendants had not been represented by counsel.

By order entered August 18, 1973 respondents were jailed in default of payment of the fines theretofore imposed and directed to appear on August 25, 1973 to show cause why they should not be required to serve the sentences.

The hearing was conducted on August 25, 1973 and September 27, 1973. There is no substantial factual dispute between the parties. In fact the entire factual situation is dependent upon the pleadings, the testimony of one witness, various stipulations and exhibits.

It was stipulated that various witnesses would testify that they had never seen anyone other than designated representatives of this particular church handle snakes; that they never saw any person who was either a parishioner or a nonmember present at the church services who had ever been placed in immediate danger.

It was further stipulated that an anthropologist would testify that snake handling is a legitimate part of their religious service; that she had never seen anyone endangered by handling snakes; that proper precautions were always taken; and that handling snakes is a legitimate and historic part of the church service. Two other witnesses would verify this testimony.

It was further stipulated that the ‘Indian boy’, bitten at one of the services, was thirty years old.

It was further stipulated that the Holiness Church of God in Jesus Name is located about a half mile from the nearest paved road, and at the end of a dead-end, dirt, private, mountain road and on property owned by the church.

The issues were not fully developed and the record is meager.

The State made no contention that this is not an organized religious group nor did it question that the practice of handling snakes was a recognized part of its Articles of Faith, nor did it question the sincerity of the conviction of the respondents.

By final decree the trial judge made the injunction permanent, directing that defendants ‘be perpetually enjoined from handling, displaying or exhibiting dangerous and poisonous snakes at the said Holiness Church of God in Jesus Name, Or at any other place in co*cke County, Tennessee.’


The history and development of the Holiness Church is relevant. The Mother Church was founded in 1909 at Sale Creek in Grasshopper Valley, Tennessee, approximately thirty-five miles northeast of Chattanooga, by George Went Hensley. Hensley was motivated by a dramatic experience which occurred atop White Oak Mountain on the eastern rim of the valley during which he confronted and seized a rattlesnake which he took back to the valley and admonished the people to ‘take up or be doomed to eternal hell.’

Hensley, and his followers, based their beliefs and practices on Mark 16, verses 17 and 18, which in the Authorized or King James version, read as follows:

And these signs shall follow them that believe; in my name shall they cast out devils; and shall Speak with new tongues; They shall take up serpents; and if they Drink any deadly thing, it shall not hurt them, they shall lay hands on the sick, and they shall recover.

The church Hensley founded spread throughout the south and southeast and continues to exist today, primarily in rural and relatively isolated regions throughout this area. The Holiness Church of God in Jesus Name, in co*cke County, is a part of this movement. LaBarre, in They shall Take Up Serpents, asserts that ‘(t)he roots of the movement lie deep in American religious history’ and asserts that it is one of the ‘offshoots of Methodism.’ Writers seem to be in general agreement that it is a ‘charismatic sect, or cult, or group of the Pentecostal variety.'

To say that this is not a conventional movement would be a masterpiece of understatement. Its beliefs and practices are, to say the least, unconventional and out of harmony with contemporary customs, mores and notions of morality. They oppose drinking (to include carbonated beverages, tea and coffee), smoking, dancing, the use of cosmetics, jewelry or other adornment. They regard the use of medicine as a sure sign of lack of faith in God’s ability to cure the sick and look upon medical doctors as being for the use of those who do not trust God. When greeting each other, the men use the ‘holy kiss’, a mouth-to-mouth osculation ‘accompanied by a vigorous, if not passionate hug.’ The ‘holy kiss’ is not exchanged between members of the opposite sexes.

But it is their belief in handling serpents that has catapulted them into the limelight and has produced their legal difficulties.

There is some apparent confusion with respect to their purpose in the use of serpents as a central practice in their religious beliefs. Harden v. State treated snake handling as being ‘the test and proof of the sincerity of their belief.’ In this record it is asserted that the use of serpents is designed as a test of the faith and sincerity of church members. Our research indicates that this is not precisely correct. Their basic reason is compliance with the scripture as they interpret it, and as required by their Articles of Faith. But the practice of snake handling is not a test of faith, nor proof of godliness. Its sole purpose is to ‘confirm the word’. In the words of Alfred Ball, a defendant to this suit:

We don’t take up serpents, handle fire or drink strychnine to test the faith of the people at all. That’s not the point of it, . . . These are signs that God said would follow the believers. And, these signs, are to confirm the Word of God, and that's the only purpose for them . . . They’re not to test the faith of the person doing it. They’re not to test whether he's a good person. It's simply and only to confirm the Word of God. That’s all God intended the signs for, and that’s the only reason we do them.

Pastor Pack states: “What serpent handling's for anyway is to confirm the Word.” Whether the practice is to ‘test the faith’, is not relevant to this controversy. We only make the distinction in the interest of an accurate and comprehensive statement of the beliefs of this religious group and its admittedly unusual ritual.

We should point out that the snakes are supplied by ‘sinners' or ‘sinner men’ or unbelieving ‘sinner boys' or ‘unbelievers.’

Lastly, it should be pointed out that snakes are only handled when the member or handler has become ‘anointed’. As we understand this phenomenon and the emotional reaction it produces, it is something akin to saying that a member doesn't handle snakes until the ‘spirit moves him’. Unquestionably this is an emotional stimulus produced by extreme faith and generating great courage. Perhaps the whole belief in ‘anointment’ can best be summed up by the defendant, Liston Pack:

When I become anointed to handle serpents, my hands get real numb. It is a tremendous feeling. Maybe symbolic to an electric shock, only an electric shock could hurt you. This'll be pure joy.

It comes from inside . . . If you’ve got the Holy Ghost in you, it’ll come out and nothing can hurt you. Faith brings contact with God and then you're anointed. It is not tempting God. You can’t tempt God by doing what He says do. You can have faith, but if you never feel the anointing, you had better leave the serpent alone.

Such is the nature of the religious group with which we deal.


Again, this is not a conventional religious group and its members are few. There is, however, no requirement under our State or Federal Constitution that any religious group be conventional or that it be numerically strong in order that its activities be protected. Nor is there any requirement that its practices be in accord with prevailing views.

The First Amendment to the Constitution of the United States requires in clear terms that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” Article 1, Section 3 of the Constitution of Tennessee contains a substantially stronger guaranty of religious freedoms. It provides:

That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship.

A ‘mode of worship’, even of a religious group wherein the handling of serpents is central to its Articles of Faith, is constitutionally protected under the Constitutions of Tennessee and of the United States.

In his original draft of the Virginia Act Establishing Religious Liberties, Thomas Jefferson, postulated, Inter alia: “No man is a competent judge of the religion of another.” Under our constitutions, a citizen may be a devout Christian, a dedicated Jew or a consummate infidel—or he may be a member of the Holiness Church of God in Jesus Name. The government must view all citizens and all religious beliefs with absolute and uncompromising neutrality. The day this Country ceases to countenance irreligion or unusual or bizarre religions, it will cease to be free for all religions. We must prefer none and disparage none.

We, therefore, hold that the Holiness Church of God in Jesus Name, is a constitutionally protected religious group. This is not to say; however, that this or any other religious group has an absolute and unbridled right to pursue any practice of its own choosing. The right to believe is absolute; the right to act is subject to reasonable regulation designed to protect a compelling state interest. This belief-action dichotomy has been the subject of numerous decisions of the Supreme Court of the United States.


An early case dealing with the belief-action dichotomy is Reynolds v. United States, wherein the defendant, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, was indicted for polygamy and defended upon the ground that, under his religious faith, it was his duty to practice polygamy. In disposing of this contention and in holding that a religious belief cannot be a justification for a criminal violation, the Court said:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circ*mstances.

This philosophy was further refined and advanced in Davis v. Beason, wherein the Court said:

The first amendment to the constitution, in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. . . . It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.

It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed, and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further from the truth. While legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as ‘religion.’

In Cantwell v. Connecticut, the Court succinctly stated the belief-action doctrine and simultaneously recognized the delicate balance which must be preserved, in these words:

Thus the Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.

This was the first case to apply the ‘clear and present danger doctrine’ in the context of First Amendment freedoms of religion, vis-a-vis a ‘substantial interest of the state.’ In this respect the Court said:

When Clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious.

The words of the late Chief Justice Hughes, writing for the Court in Cox v. State of New Hampshire, are pertinent:

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.

In West Virginia State Board of Education v. Barnette, the Supreme Court had under consideration a resolution of a state board of education requiring that children, in public schools, salute the American Flag. Members of Jehovah’s Witnesses objected on the grounds that under their religious teachings the flag is an ‘image’ within the prohibition of the commandment against graven images. In holding that the state could not validly enforce such a requirement the Court observed that First Amendment freedoms ‘are susceptible of restriction only to prevent Grave and immediate danger to interests which the state may lawfully protect’. The Court said, Inter alia:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

In Thomas v. Collins, the Court said of the First Amendment freedoms:

(A)ny attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by Clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the Gravest abuses, endangering paramount interests, give occasion for permissible limitation.

In Harden v. State, this Court was confronted with a challenge to the constitutionality of Chapter 89, Public Acts of 1947 (now s 39—2208, T.C.A.), on the basis of its alleged violation of the Freedom of Religion Clauses of the State and Federal Constitutions. After citing the belief-action dichotomy of Cantwell, certain of the dicta in Reynolds, and the ‘grave and immediate danger’ doctrine of Barnette, the Court said: “It is equally certain that this danger is grave and immediate when and wherever the practice is being indulged.”

They may believe without fear of any punishment that it is right to handle poisonous snakes while conducting religious services. But the right to practice that belief ‘is limited by other recognized powers, equally precious to mankind.’ One of those equally as precious rights is that of society’s protection from a practice, religious or otherwise, which is dangerous to life and health.

There cannot be any question that the Court acted upon acceptable legal principles and precedents in declaring the Tennessee Snake Handler’s Act constitutional in the face of an attack based upon the Freedom of Religion Clauses of the state and federal constitutions. This is not, however, to say that its application would necessarily be constitutional under all circ*mstances as is hereinafter pointed out. Harden simply holds that the statute does not violate the freedom of religion guarantees of the federal or state constitutions and that the defendants, under the factual situation of that particular case, had handled snakes ‘in such a manner as to endanger the life or health of any person’. Neighboring states having similar statutes have uniformly upheld and applied them. . . .

A most significant post-Harden case is Sherbert v. Verner, in which the Court’s ruling has been characterized as ‘a new test whereby the burden imposed on an individual because of a restriction on the free exercise of his religion is balanced against the state's interest in controlling the individual’s practice of his religion.’ The Court in Sherbert made it clear that the state’s interest must be more than rational or colorable in this highly sensitive constitutional area, and that ‘(o)nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’ The Court outlined a two-stage approach, viz.: (1) whether the statute imposes a burden upon the free exercise of religion and (2) whether some compelling state interest justifies the infringement.

The most significant and relevant decision since this Court decided Harden, is Wisconsin v. Yoder. Members of the Amish faith were convicted of violating Wisconsin’s compulsory school attendance law by refusing to send their children to school after they had graduated from the eighth grade. Attendance at high school is contrary to the Amish religious faith. The Court affirmed the Wisconsin Supreme Court, holding that their criminal convictions were invalid under the Free Exercise Clause of the First Amendment to the Constitution of the United States. It was stipulated that the defendants’ religious beliefs were sincere.

Apropos the case at bar is the following language from the opinion of the Court:

Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.

Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State's control, but it argues that ‘actions,’ even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. (Citations omitted). But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. (Citations omitted). This case, therefore, does not become easier because respondents were convicted for their ‘actions' in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments.

The holding of Yoder is essentially that permitting the Amish to educate their children, after they have completed the eighth grade, in their own way and in deference to their established religious views, the statutory requirement to the contrary notwithstanding, would not impair the health of the children, nor result in their inability to be self-supporting or to discharge the duties and responsibilities of citizenship, nor in any way materially detract from the welfare of society. Therefore, the Court held that the state's interest was not so compelling as to overrule the freedom of the Amish to pursue their established religious practice.

Respondent urges upon us that the ‘belief-action’ dichotomy was expressly rejected by the Court in Yoder and apparently bases this insistence upon the above quoted language. What the Court actually rejected was the ‘idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause.’ The consistent holding of the courts has been that belief is always protected, but that conduct or action is subject to regulation in the manner and to the extent hereinabove set forth.

The opinion of the Court of Appeals, with respect to Harden, reasons that subsequent decisions of the Supreme Court of the United States ‘have removed the theoretical underpinnings on which the decision was based.’ The opinion recites:

The Harden decision was premised on the subsequently rejected belief-action dichotomy in free exercise cases, requiring merely a rational relationship between restrictions on religious conduct and the state interest served by the restrictions.

We respectfully differ with our brothers of the Court of Appeals. Without laboring the point, Harden was premised on belief-action, but to an equal if not greater extent upon the ‘clear and present’ danger and ‘substantial interest’ doctrine of Cantwell.

We read nothing in Yoder that would fault the analytic approach of the Harden Court or cause us to reject its reasoning or results.

We hold that under the First Amendment to the Constitution of the United States and under the substantially stronger provisions of Article 1, Section 3 of the Constitution of Tennessee, a religious practice may be limited, curtailed or restrained to the point of outright prohibition, where it involves a clear and present danger to the interests of society; but the action of the state must be reasonable and reasonably dictated by the needs and demands of society as determined by the nature of the activity as balanced against societal interests. Essentially, therefore, the problem becomes one of a balancing of the interests between religious freedom and the preservation of the health, safety and morals of society. The scales must be weighed in favor of religious freedom, and yet the balance is delicate.

The right to the free exercise of religion is not absolute and unconditional. Nor is its sweep susceptible of discrete and concrete compartmentalization. It is perforce, of necessity, a vague and nebulous notion, defying the certainties of definition and the niceties of description. At some point the freedom of the individual must wane and the power, duty and interest of the state becomes compelling and dominant.

Certain guidelines do, however, emerge under both constitutions.

Free exercise of religion does not include the right to violate statutory law.

It does not include the right to commit or maintain a nuisance.

The fact that one acts from the promptings of religious beliefs does not immunize against lawless conduct.

But, again, the scales are always weighted in favor of free exercise and the state's interest must be compelling; it must be substantial; the danger must be clear and present and so grave as to endanger paramount public interests.

We decide this controversy in the light of these objectives. In doing so we have not lost sight of the fact that snake handling is central to respondents’ faith. We recognize that to forbid snake handling is to remove the theological heart of the Holiness Church and this has prompted this Court to investigate and research this matter with meticulous care and to announce its decision through an unusually extensive opinion. . . .


This is a suit to abate a nuisance.The right of the District Attorney General to institute and maintain such an action inheres in his office. It is his duty to investigate, prosecute and insure against all infractions of the public peace and all acts which are against the peace and dignity of the state.

We hold that the handling of snakes as a part of a religious ritual is a common law nuisance, wholly independent of any state statute. In 58 Am.Jur.2d, Nuisances, s 7, a public nuisance is defined as follows:

It is a condition of things which is prejudicial to the health, comfort, safety, property, sense of decency, or morals of the citizens at large, resulting either from an act not warranted by law, or from neglect of a duty imposed by law.

Under this record, showing as it does, the handling of snakes in a crowded church sanctuary, with virtually no safeguards, with children roaming about unattended, with the handlers so enraptured and entranced that they are in a virtual state of hysteria and acting under the compulsion of ‘anointment’, we would be derelict in our duty if we did not hold that respondents and their confederates have combined and conspired to commit a public nuisance and plan to continue to do so. The human misery and loss of life at their ‘Homecoming’ of April 7, 1970 is proof positive.

Our research confirms the general pattern.

Tennessee has the right to guard against the unnecessary creation of widows and orphans. Our state and nation have an interest in having a strong, healthy, robust, taxpaying citizenry capable of self-support and of bearing arms and adding to the resources and reserves of manpower. We, therefore, have a substantial and compelling state interest in the face of a clear and present danger so grave as to endanger paramount public interests.

It has been held that a state may compel polio shots, may regulate child labor, may require compulsory chest x-rays, may decree compulsory water fluoridation, may mandate vaccinations as a condition of school attendance, and may compel medical care to a dying patient.

This holding is in no sense dependent upon the way or manner in which snakes are handled since it is not based upon the snake handling statute. Irrespective of its import, we hold that those who publicly handle snakes in the presence of other persons and those who are present aiding and abetting are guilty of creating and maintaining a public nuisance. Yes, the state has a right to protect a person from himself and to demand that he protect his own life.

Suicide is not specifically denounced as a crime under our statutes but was a crime at the common law. Tennessee adopted the Common Law as it existed at the time of the separation of the colonies. An attempt to commit suicide is probably not an indictable offense under Tennessee law; however, such an attempt would constitute a grave public wrong, and we hold that the state has a compelling interest in protecting the life and promoting the health of its citizens.

Most assuredly the handling of poisonous snakes by untrained persons and the drinking of strychnine are not calculated to increase one’s life span.


The trial judge enjoined the respondents from handling poisonous snakes or using deadly poisons in any church service in co*cke County but authorized the consumption of strychnine.

He erred.

The Court of Appeals modified the injunction so as to enjoin respondents from handling, displaying or exhibiting dangerous and poisonous snakes in such manner as will endanger the life or health of persons who do not consent to exposure to such danger.

There is no reason to restrict the injunction to the terms of the statute, nor is there any occasion for applying a ‘consenting adult’ criterion.

On remand the trial judge will enter an injunction perpetually enjoining and restraining all parties respondent from handling, displaying or exhibiting dangerous and poisonous snakes or from consuming strychnine or any other poisonous substances, within the confines of the State of Tennessee. . . .

We fully appreciate the fact that the decision we reach imposes stringent limitations upon the pursuit of a religious practice, a result we endeavored to avoid. After long and careful analysis of alternatives and lengthy deliberations on all aspects of this problem we reached the conclusion that paramount considerations of public policy precluded less stringent solutions. We gave consideration to limiting the prohibition to handling snakes in the presence of children, but rejected this approach because it conflicts with the parental right and duty to direct the religious training of his children. We considered the adoption of a ‘consenting adult’ standard but, again, this practice is too fraught with danger to permit its pursuit in the frenzied atmosphere of an emotional church service, regardless of age or consent. We considered restricting attendance to members only, but this would destroy the evangelical mission of the church. We considered permitting only the handlers themselves to be present, but this frustrates the purpose of confirming the faith to non-believers and separates the pastor and leaders from the congregation. We could find no rational basis for limiting or restricting the practice, and could conceive of no alternative plan or procedure which would be palatable to the membership or permissible from a standpoint of compelling state interest. The very considerations which impel us to outright prohibition, would preclude fragmentation of the religious services or the pursuit of this practice on a limited basis.

This cause is remanded to the Circuit Court at Newport and will be retained on the active docket for the enforcement of the injunction and such other, further and additional actions and orders as may become necessary.

Bob Jones Univ. v. United States

461 U.S. 574 (1983)

Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to decide whether petitioners, nonprofit private schools that prescribe and enforce racially discriminatory admissions standards on the basis of religious doctrine, qualify as tax-exempt organizations under § 501(c)(3) of the Internal Revenue Code of 1954.


Until 1970, the Internal Revenue Service granted tax-exempt status to private schools, without regard to their racial admissions policies, under § 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), and granted charitable deductions for contributions to such schools under § 170 of the Code, 26 U.S.C. § 170.

On January 12, 1970, a three-judge District Court for the District of Columbia issued a preliminary injunction prohibiting the IRS from according tax-exempt status to private schools in Mississippi that discriminated as to admissions on the basis of race. Thereafter, in July 1970, the IRS concluded that it could “no longer legally justify allowing tax-exempt status [under § 501(c)(3) ] to private schools which practice racial discrimination.” At the same time, the IRS announced that it could not “treat gifts to such schools as charitable deductions for income tax purposes [under § 170].” By letter dated November 30, 1970, the IRS formally notified private schools, including those involved in this case, of this change in policy, “applicable to all private schools in the United States at all levels of education.”

On June 30, 1971, the three-judge District Court issued its opinion on the merits of the Mississippi challenge. That court approved the IRS’ amended construction of the Tax Code. The court also held that racially discriminatory private schools were not entitled to exemption under § 501(c)(3) and that donors were not entitled to deductions for contributions to such schools under § 170. The court permanently enjoined the Commissioner of Internal Revenue from approving tax-exempt status for any school in Mississippi that did not publicly maintain a policy of nondiscrimination.

The revised policy on discrimination was formalized in Revenue Ruling 71–447, 1971–2 Cum.Bull. 230:

Both the courts and the Internal Revenue Service have long recognized that the statutory requirement of being ‘organized and operated exclusively for religious, charitable, ... or educational purposes' was intended to express the basic common law concept [of ‘charity’].... All charitable trusts, educational or otherwise, are subject to the requirement that the purpose of the trust may not be illegal or contrary to public policy.

Based on the “national policy to discourage racial discrimination in education,” the IRS ruled that “a private school not having a racially nondiscriminatory policy as to students is not ‘charitable’ within the common law concepts reflected in sections 170 and 501(c)(3) of the Code.”

The application of the IRS construction of these provisions to petitioners, two private schools with racially discriminatory admissions policies, is now before us.

B. No. 81–3, Bob Jones University v. United States

Bob Jones University is a nonprofit corporation located in Greenville, South Carolina. Its purpose is “to conduct an institution of learning ..., giving special emphasis to the Christian religion and the ethics revealed in the Holy Scriptures.” The corporation operates a school with an enrollment of approximately 5,000 students, from kindergarten through college and graduate school. Bob Jones University is not affiliated with any religious denomination, but is dedicated to the teaching and propagation of its fundamentalist Christian religious beliefs. It is both a religious and educational institution. Its teachers are required to be devout Christians, and all courses at the University are taught according to the Bible. Entering students are screened as to their religious beliefs, and their public and private conduct is strictly regulated by standards promulgated by University authorities.

The sponsors of the University genuinely believe that the Bible forbids interracial dating and marriage. To effectuate these views, Negroes were completely excluded until 1971. From 1971 to May 1975, the University accepted no applications from unmarried Negroes, but did accept applications from Negroes married within their race.

Following the decision of the United States Court of Appeals for the Fourth Circuit in McCrary v. Runyon prohibiting racial exclusion from private schools, the University revised its policy. Since May 29, 1975, the University has permitted unmarried Negroes to enroll; but a disciplinary rule prohibits interracial dating and marriage. . . .

The University continues to deny admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating.

Until 1970, the IRS extended tax-exempt status to Bob Jones University under § 501(c)(3). By the letter of November 30, 1970, that followed the injunction issued in Green v. Kennedy, the IRS formally notified the University of the change in IRS policy, and announced its intention to challenge the tax-exempt status of private schools practicing racial discrimination in their admissions policies.

After failing to obtain an assurance of tax exemption through administrative means, the University instituted an action in 1971 seeking to enjoin the IRS from revoking the school’s tax-exempt status. That suit culminated in Bob Jones University v. Simon, in which this Court held that the Anti-Injunction Act of the Internal Revenue Code, 26 U.S.C. § 7421(a), prohibited the University from obtaining judicial review by way of injunctive action before the assessment or collection of any tax.

Thereafter, on April 16, 1975, the IRS notified the University of the proposed revocation of its tax-exempt status. On January 19, 1976, the IRS officially revoked the University’s tax-exempt status, effective as of December 1, 1970, the day after the University was formally notified of the change in IRS policy. The University subsequently filed returns under the Federal Unemployment Tax Act for the period from December 1, 1970, to December 31, 1975, and paid a tax totalling $21.00 on one employee for the calendar year of 1975. After its request for a refund was denied, the University instituted the present action, seeking to recover the $21.00 it had paid to the IRS. The Government counterclaimed for unpaid federal unemployment taxes for the taxable years 1971 through 1975, in the amount of $489,675.59, plus interest.

The United States District Court for the District of South Carolina held that revocation of the University’s tax-exempt status exceeded the delegated powers of the IRS, was improper under the IRS rulings and procedures, and violated the University’s rights under the Religion Clauses of the First Amendment. The court accordingly ordered the IRS to pay the University the $21.00 refund it claimed and rejected the IRS counterclaim.

The Court of Appeals for the Fourth Circuit, in a divided opinion, reversed. Citing Green v. Connally with approval, the Court of Appeals concluded that § 501(c)(3) must be read against the background of charitable trust law. To be eligible for an exemption under that section, an institution must be “charitable” in the common law sense, and therefore must not be contrary to public policy. In the court's view, Bob Jones University did not meet this requirement, since its “racial policies violated the clearly defined public policy, rooted in our Constitution, condemning racial discrimination and, more specifically, the government policy against subsidizing racial discrimination in education, public or private.” The court held that the IRS acted within its statutory authority in revoking the University’s tax-exempt status. Finally, the Court of Appeals rejected petitioner’s arguments that the revocation of the tax exemption violated the Free Exercise and Establishment Clauses of the First Amendment. The case was remanded to the District Court with instructions to dismiss the University’s claim for a refund and to reinstate the Government’s counterclaim.

C. No. 81–1, Goldsboro Christian Schools, Inc. v. United States

Goldsboro Christian Schools is a nonprofit corporation located in Goldsboro, North Carolina. Like Bob Jones University, it was established “to conduct an institution of learning, giving special emphasis to the Christian religion and the ethics revealed in the Holy scriptures.” The school offers classes from kindergarten through high school, and since at least 1969 has satisfied the State of North Carolina’s requirements for secular education in private schools. The school requires its high school students to take Bible-related courses, and begins each class with prayer.

Since its incorporation in 1963, Goldsboro Christian Schools has maintained a racially discriminatory admissions policy based upon its interpretation of the Bible. Goldsboro has for the most part accepted only Caucasians. On occasion, however, the school has accepted children from racially mixed marriages in which one of the parents is Caucasian.

Goldsboro never received a determination by the IRS that it was an organization entitled to tax exemption under § 501(c)(3). Upon audit of Goldsboro's records for the years 1969 through 1972, the IRS determined that Goldsboro was not an organization described in § 501(c)(3), and therefore was required to pay taxes under the Federal Insurance Contribution Act and the Federal Unemployment Tax Act.

Goldsboro paid the IRS $3,459.93 in withholding, social security, and unemployment taxes with respect to one employee for the years 1969 through 1972. Thereafter, Goldsboro filed a suit seeking refund of that payment, claiming that the school had been improperly denied § 501(c)(3) exempt status. The IRS counterclaimed for $160,073.96 in unpaid social security and unemployment taxes for the years 1969 through 1972, including interest and penalties.

The District Court for the Eastern District of North Carolina decided the action on cross-motions for summary judgment. In addressing the motions for summary judgment, the court assumed that Goldsboro's racially discriminatory admissions policy was based upon a sincerely held religious belief. The court nevertheless rejected Goldsboro's claim to tax-exempt status under § 501(c)(3), finding that “private schools maintaining racially discriminatory admissions policies violate clearly declared federal policy and, therefore, must be denied the federal tax benefits flowing from qualification under Section 501(c)(3).” The court also rejected Goldsboro's arguments that denial of tax-exempt status violated the Free Exercise and Establishment Clauses of the First Amendment. Accordingly, the court entered summary judgment for the Government on its counterclaim.

The Court of Appeals for the Fourth Circuit affirmed. That court found an “identity for present purposes” between the Goldsboro case and the Bob Jones University case, which had been decided shortly before by another panel of that court, and affirmed for the reasons set forth in Bob Jones University.

We granted certiorari in both cases, and we affirm in each.


In Revenue Ruling 71–447, the IRS formalized the policy first announced in 1970, that § 170 and § 501(c)(3) embrace the common law “charity” concept. Under that view, to qualify for a tax exemption pursuant to § 501(c)(3), an institution must show, first, that it falls within one of the eight categories expressly set forth in that section, and second, that its activity is not contrary to settled public policy.

Section 501(c)(3) provides that “[c]orporations . . . organized and operated exclusively for religious, charitable . . . or educational purposes” are entitled to tax exemption. Petitioners argue that the plain language of the statute guarantees them tax-exempt status. They emphasize the absence of any language in the statute expressly requiring all exempt organizations to be “charitable” in the common law sense, and they contend that the disjunctive “or” separating the categories in § 501(c)(3) precludes such a reading. Instead, they argue that if an institution falls within one or more of the specified categories it is automatically entitled to exemption, without regard to whether it also qualifies as “charitable.” The Court of Appeals rejected that contention and concluded that petitioners’ interpretation of the statute “tears section 501(c)(3) from its roots.”

It is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute:

“The general words used in the clause, taken by themselves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tribunal—because it is evident that in many cases it would defeat the object which the Legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law.”

Section 501(c)(3) therefore must be analyzed and construed within the framework of the Internal Revenue Code and against the background of the Congressional purposes. Such an examination reveals unmistakable evidence that, underlying all relevant parts of the Code, is the intent that entitlement to tax exemption depends on meeting certain common law standards of charity—namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.

This “charitable” concept appears explicitly in § 170 of the Code. That section contains a list of organizations virtually identical to that contained in § 501(c)(3). It is apparent that Congress intended that list to have the same meaning in both sections. In § 170, Congress used the list of organizations in defining the term “charitable contributions.” On its face, therefore, § 170 reveals that Congress’ intention was to provide tax benefits to organizations serving charitable purposes. The form of § 170 simply makes plain what common sense and history tell us: in enacting both § 170 and § 501(c)(3), Congress sought to provide tax benefits to charitable organizations, to encourage the development of private institutions that serve a useful public purpose or supplement or take the place of public institutions of the same kind.

Tax exemptions for certain institutions thought beneficial to the social order of the country as a whole, or to a particular community, are deeply rooted in our history, as in that of England. The origins of such exemptions lie in the special privileges that have long been extended to charitable trusts. . . .

What little floor debate occurred on the charitable exemption provision of the 1894 Act and similar sections of later statutes leaves no doubt that Congress deemed the specified organizations entitled to tax benefits because they served desirable public purposes. In floor debate on a similar provision in 1917, for example, Senator Hollis articulated the rationale: “For every dollar that a man contributes to these public charities, educational, scientific, or otherwise, the public gets 100 percent.”

In 1924, this Court restated the common understanding of the charitable exemption provision: “Evidently the exemption is made in recognition of the benefit which the public derives from corporate activities of the class named, and is intended to aid them when not conducted for private gain.”

In enacting the Revenue Act of 1938, Congress expressly reconfirmed this view with respect to the charitable deduction provision:

The exemption from taxation of money and property devoted to charitable and other purposes is based on the theory that the Government is compensated for the loss of revenue by its relief from financial burdens which would otherwise have to be met by appropriations from other public funds, and by the benefits resulting from the promotion of the general welfare.

A corollary to the public benefit principle is the requirement, long recognized in the law of trusts, that the purpose of a charitable trust may not be illegal or violate established public policy. . . .

When the Government grants exemptions or allows deductions all taxpayers are affected; the very fact of the exemption or deduction for the donor means that other taxpayers can be said to be indirect and vicarious “donors.” Charitable exemptions are justified on the basis that the exempt entity confers a public benefit—a benefit which the society or the community may not itself choose or be able to provide, or which supplements and advances the work of public institutions already supported by tax revenues. History buttresses logic to make clear that, to warrant exemption under §501(c)(3), an institution must fall within a category specified in that section and must demonstrably serve and be in harmony with the public interest. The institution’s purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.


We are bound to approach these questions with full awareness that determinations of public benefit and public policy are sensitive matters with serious implications for the institutions affected; a declaration that a given institution is not “charitable” should be made only where there can be no doubt that the activity involved is contrary to a fundamental public policy. But there can no longer be any doubt that racial discrimination in education violates deeply and widely accepted views of elementary justice. Prior to 1954, public education in many places still was conducted under the pall of Plessy v. Ferguson; racial segregation in primary and secondary education prevailed in many parts of the country. This Court’s decision in Brown v. Board of Education signalled an end to that era. Over the past quarter of a century, every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination in public education.

An unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court's view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals.

“The right of a student not to be segregated on racial grounds in schools ... is indeed so fundamental and pervasive that it is embraced in the concept of due process of law.”

In Norwood v. Harrison, we dealt with a non-public institution: “[A] private school—even one that discriminates—fulfills an important educational function; however, . . . [that] legitimate educational function cannot be isolated from discriminatory practices . . . [D]iscriminatory treatment exerts a pervasive influence on the entire educational process.”

Congress, in Titles IV and VI of the Civil Rights Act of 1964 clearly expressed its agreement that racial discrimination in education violates a fundamental public policy. Other sections of that Act, and numerous enactments since then, testify to the public policy against racial discrimination.

The Executive Branch has consistently placed its support behind eradication of racial discrimination. Several years before this Court’s decision in Brown v. Board of Education, President Truman issued Executive Orders prohibiting racial discrimination in federal employment decisions and in classifications for the Selective Service. In 1957, President Eisenhower employed military forces to ensure compliance with federal standards in school desegregation programs. And in 1962, President Kennedy announced:

[T]he granting of federal assistance for . . . housing and related facilities from which Americans are excluded because of their race, color, creed, or national origin is unfair, unjust, and inconsistent with the public policy of the United States as manifested in its Constitution and laws.

These are but a few of numerous Executive Orders over the past three decades demonstrating the commitment of the Executive Branch to the fundamental policy of eliminating racial discrimination.

Few social or political issues in our history have been more vigorously debated and more extensively ventilated than the issue of racial discrimination, particularly in education. Given the stress and anguish of the history of efforts to escape from the shackles of the “separate but equal” doctrine of Plessy v. Ferguson, it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising “beneficial and stabilizing influences in community life,” Walz v. Tax Comm’n, or should be encouraged by having all taxpayers share in their support by way of special tax status.

There can thus be no question that the interpretation of § 170 and § 501(c)(3) announced by the IRS in 1970 was correct. That it may be seen as belated does not undermine its soundness. It would be wholly incompatible with the concepts underlying tax exemption to grant the benefit of tax-exempt status to racially discriminatory educational entities, which “exer[t] a pervasive influence on the entire educational process.” Whatever may be the rationale for such private schools' policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the “charitable” concept discussed earlier, or within the Congressional intent underlying § 170 and § 501(c)(3).


Petitioners contend that, regardless of whether the IRS properly concluded that racially discriminatory private schools violate public policy, only Congress can alter the scope of § 170 and § 501(c)(3). Petitioners accordingly argue that the IRS overstepped its lawful bounds in issuing its 1970 and 1971 rulings.

Yet ever since the inception of the tax code, Congress has seen fit to vest in those administering the tax laws very broad authority to interpret those laws. In an area as complex as the tax system, the agency Congress vests with administrative responsibility must be able to exercise its authority to meet changing conditions and new problems. Indeed as early as 1918, Congress expressly authorized the Commissioner “to make all needful rules and regulations for the enforcement” of the tax laws. Revenue Act of 1918. . . .

On the record before us, there can be no doubt as to the national policy. In 1970, when the IRS first issued the ruling challenged here, the position of all three branches of the Federal Government was unmistakably clear. The correctness of the Commissioner's conclusion that a racially discriminatory private school “is not ‘charitable’ within the common law concepts reflected in ... the Code,” is wholly consistent with what Congress, the Executive and the courts had repeatedly declared before 1970. Indeed, it would be anomalous for the Executive, Legislative and Judicial Branches to reach conclusions that add up to a firm public policy on racial discrimination, and at the same time have the IRS blissfully ignore what all three branches of the Federal Government had declared. Clearly an educational institution engaging in practices affirmatively at odds with this declared position of the whole government cannot be seen as exercising a “beneficial and stabilizing influenc[e] in community life,” and is not “charitable,” within the meaning of § 170 and § 501(c)(3). We therefore hold that the IRS did not exceed its authority when it announced its interpretation of § 170 and § 501(c)(3) in 1970 and 1971. . . .


Petitioners contend that, even if the Commissioner’s policy is valid as to nonreligious private schools, that policy cannot constitutionally be applied to schools that engage in racial discrimination on the basis of sincerely held religious beliefs. As to such schools, it is argued that the IRS construction of § 170 and § 501(c)(3) violates their free exercise rights under the Religion Clauses of the First Amendment. This contention presents claims not heretofore considered by this Court in precisely this context.

This Court has long held the Free Exercise Clause of the First Amendment an absolute prohibition against governmental regulation of religious beliefs. As interpreted by this Court, moreover, the Free Exercise Clause provides substantial protection for lawful conduct grounded in religious belief. However, “[n]ot all burdens on religion are unconstitutional.... The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”

On occasion this Court has found certain governmental interests so compelling as to allow even regulations prohibiting religiously based conduct. In Prince v. Massachusetts, for example, the Court held that neutrally cast child labor laws prohibiting sale of printed materials on public streets could be applied to prohibit children from dispensing religious literature. The Court found no constitutional infirmity in “excluding [Jehovah’s Witness children] from doing there what no other children may do.” Denial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets.

The governmental interest at stake here is compelling. As discussed in Part II(B), the Government has a fundamental, overriding interest in eradicating racial discrimination in education—discrimination that prevailed, with official approval, for the first 165 years of this Nation's history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, and no “less restrictive means” are available to achieve the governmental interest.


The remaining issue is whether the IRS properly applied its policy to these petitioners. Petitioner Goldsboro Christian Schools admits that it “maintain[s] racially discriminatory policies,” but seeks to justify those policies on grounds we have fully discussed. The IRS properly denied tax-exempt status to Goldsboro Christian Schools.

Petitioner Bob Jones University, however, contends that it is not racially discriminatory. It emphasizes that it now allows all races to enroll, subject only to its restrictions on the conduct of all students, including its prohibitions of association between men and women of different races, and of interracial marriage. Although a ban on intermarriage or interracial dating applies to all races, decisions of this Court firmly establish that discrimination on the basis of racial affiliation and association is a form of racial discrimination. We therefore find that the IRS properly applied Revenue Ruling 71–447 to Bob Jones University.

The judgments of the Court of Appeals are, accordingly, affirmed.

Justice POWELL, concurring in part and concurring in the judgment.

I join the Court’s judgment, along with part III of its opinion holding that the denial of tax exemptions to petitioners does not violate the First Amendment. I write separately because I am troubled by the broader implications of the Court’s opinion with respect to the authority of the Internal Revenue Service (IRS) and its construction of §§ 170(c) and 501(c)(3) of the Internal Revenue Code.

. . . I am unconvinced that the critical question in determining tax-exempt status is whether an individual organization provides a clear “public benefit” as defined by the Court. Over 106,000 organizations filed § 501(c)(3) returns in 1981. I find it impossible to believe that all or even most of those organizations could prove that they “demonstrably serve and [are] in harmony with the public interest” or that they are “beneficial and stabilizing influences in community life.” Nor I am prepared to say that petitioners, because of their racially discriminatory policies, necessarily contribute nothing of benefit to the community. It is clear from the substantially secular character of the curricula and degrees offered that petitioners provide educational benefits.

Even more troubling to me is the element of conformity that appears to inform the Court's analysis. The Court asserts that an exempt organization must “demonstrably serve and be in harmony with the public interest,” must have a purpose that comports with “the common community conscience,” and must not act in a manner “affirmatively at odds with [the] declared position of the whole government.” Taken together, these passages suggest that the primary function of a tax-exempt organization is to act on behalf of the Government in carrying out governmentally approved policies. In my opinion, such a view of § 501(c)(3) ignores the important role played by tax exemptions in encouraging diverse, indeed often sharply conflicting, activities and viewpoints. As Justice Brennan has observed, private, nonprofit groups receive tax exemptions because “each group contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society.” Far from representing an effort to reinforce any perceived “common community conscience,” the provision of tax exemptions to nonprofit groups is one indispensable means of limiting the influence of governmental orthodoxy on important areas of community life. Given the importance of our tradition of pluralism, “[t]he interest in preserving an area of untrammeled choice for private philanthropy is very great.”

I do not suggest that these considerations always are or should be dispositive. Congress, of course, may find that some organizations do not warrant tax-exempt status. In this case I agree with the Court that Congress has determined that the policy against racial discrimination in education should override the countervailing interest in permitting unorthodox private behavior.

I would emphasize, however, that the balancing of these substantial interests is for Congress to perform. I am unwilling to join any suggestion that the Internal Revenue Service is invested with authority to decide which public policies are sufficiently “fundamental” to require denial of tax exemptions. Its business is to administer laws designed to produce revenue for the Government, not to promote “public policy.” . . .

Justice REHNQUIST, dissenting.

The Court points out that there is a strong national policy in this country against racial discrimination. To the extent that the Court states that Congress in furtherance of this policy could deny tax-exempt status to educational institutions that promote racial discrimination, I readily agree. But, unlike the Court, I am convinced that Congress simply has failed to take this action and, as this Court has said over and over again, regardless of our view on the propriety of Congress’ failure to legislate we are not constitutionally empowered to act for them. . . .

I have no disagreement with the Court's finding that there is a strong national policy in this country opposed to racial discrimination. I agree with the Court that Congress has the power to further this policy by denying § 501(c)(3) status to organizations that practice racial discrimination. But as of yet Congress has failed to do so. Whatever the reasons for the failure, this Court should not legislate for Congress.

Petitioners are each organized for the “instruction or training of the individual for the purpose of improving or developing his capabilities,” and thus are organized for “educational purposes” within the meaning of § 501(c)(3). Petitioners’ nonprofit status is uncontested. There is no indication that either petitioner has been involved in lobbying activities or political campaigns. Therefore, it is my view that unless and until Congress affirmatively amends § 501(c)(3) to require more, the IRS is without authority to deny petitioners § 501(c)(3) status. For this reason, I would reverse the Court of Appeals.

Burwell v. Hobby Lobby Stores, Inc.

573 U.S. 682 (2014)

Justice ALITO delivered the opinion of the Court.

We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA) permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.

Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.



Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years.

In Smith, however, the Court rejected “the balancing test set forth in Sherbert.Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause.

This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores (1997).

Congress responded to Smith by enacting RFRA. “Laws that are ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work, but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.”

Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” Before RLUIPA, RFRA’s definition made reference to the First Amendment. See RFRA (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” And Congress mandated that this concept “be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”


At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (ACA). ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individual.” And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees.

Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require.

In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.

HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” That category encompasses “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services.

In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.”

In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. And employers with fewer than 50 employees are not required to provide health insurance at all.

All told, the contraceptive mandate “presently does not apply to tens of millions of people.” This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013.



Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages ... shares humanity with those who conceived it.”

Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.

The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.”

As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” The Hahns have accordingly excluded from the group-health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients.

The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA-approved contraceptives that may operate after the fertilization of an egg. These include two forms of emergency contraception commonly called “morning after” pills and two types of intrauterine devices.


David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and-crafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. Hobby Lobby is organized as a for-profit corporation under Oklahoma law.

One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Mardel is also organized as a for-profit corporation under Oklahoma law.

Though these two businesses have expanded over the years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO.

Hobby Lobby’s statement of purpose commits the Greens to “honoring the Lord in all they do by operating the company in a manner consistent with Biblical principles.” Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.”

Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed.

The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.



The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.



As we noted above, RFRA applies to “a person’s” exercise of religion and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “in determining the meaning of any Act of Congress, unless the context indicates otherwise.”

Under the Dictionary Act, “the word ‘person’ ... includes corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA.

This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.


The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.

Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious “autonomy ... often furthers individual religious freedom as well.” But this principle applies equally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.

HHS would draw a sharp line between nonprofit corporations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals. In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.

In any event, the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated—Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles.


HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws.

First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so.

Further, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a for-profit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim, but not one member of the Court expressed agreement with that argument.

Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.”

These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.

HHS and the principal dissent express concern about the possibility of disputes among the owners of corporations, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do—disagree about the conduct of business. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure Courts will turn to that structure and the underlying state law in resolving disputes.

For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.


Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. We have little trouble concluding that it does.


As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.

If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.

It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. § 4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.


Although these totals are high, those supporting HHS have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party.

Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business reasons, but also in part because their religious beliefs govern their relations with their employees.

Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers.

The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. Likewise, employers can deduct the cost of providing health insurance, but apparently cannot deduct the amount of the penalty that they must pay if insurance is not provided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.

In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government—that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.


In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs ) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circ*mstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. . . .

Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.


Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”


HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” This requires us to “look beyond broadly formulated interests” and to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases.

In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, and HHS tells us that “studies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.”

The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all.

HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circ*mstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.”

We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.”


The least-restrictive-means standard is exceptionally demanding and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases.

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA.

HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circ*mstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. See RLUIPA (“[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.

In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “provide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements ... on the eligible organization, the group health plan, or plan participants or beneficiaries.”

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.

The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none. Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal logistical and administrative obstacles,” because their employers’ insurers would be responsible for providing information and coverage. Ironically, it is the dissent’s approach that would “impede women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” because the dissent would effectively compel religious employers to drop health-insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress contemplated.”


HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.

It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to for-profit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems associated with a national system of taxation. We noted that “the obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” We observed that “the tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.”

Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing tax-payers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.

In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” The wisdom of Congress’s judgment on this matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.

The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, and with whom Justice BREYER and Justice KAGAN join as to all but Part III–C–1, dissenting.

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.


“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey. Congress acted on that understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases.


The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary. Particular services were to be recommended by the U.S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, however; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health.


While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.” That amendment, Senator Mikulski observed, would have “put the personal opinion of employers and insurers over the practice of medicine.” Rejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.


Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion ... is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.” The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental.

Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.

The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. In sum, with respect to free exercise claims no less than free speech claims, “‘[y]our right to swing your arms ends just where the other man’s nose begins.’”



Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” In RFRA, Congress “adopted a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente Uniao do Vegetal.

RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.”

The legislative history is correspondingly emphatic on RFRA’s aim. (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” In short, the Act reinstates the law as it was prior to Smith, without “creating new rights for any religious practice or for any potential litigant.”


With RFRA’s restorative purpose in mind, I turn to the Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “persons” who “exercise religion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?

Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis.


RFRA’s compelling interest test, as noted, applies to government actions that “substantially burden a person’s exercise of religion.” This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” The Dictionary Act’s definition, however, controls only where “context” does not “indicate otherwise.” Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” Whether a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations.

Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n.

The First Amendment’s free exercise protections, the Court has indeed recognized, shelter churches and other nonprofit religion-based organizations. “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter–day Saints v. Amos. The Court’s “special solicitude to the rights of religious organizations,” Hosanna–Tabor Evangelical Lutheran Church and School v. EEOC, however, is just that. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos.

The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations. The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. The text of RFRA makes no such statement and the legislative history does not so much as mention for-profit corporations.

The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. To reiterate, “for- profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].”

The Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, Hobby Lobby and Conestoga can’t do the same?” But even accepting for the sake of argument the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.

The Court’s determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.


Even if Hobby Lobby and Conestoga were deemed RFRA “persons,” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substantially burdens their exercise of religion.” Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.”

The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belief that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion ... that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake.

Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services.

Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “no individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense her employer’s decision or action.” It is doubtful that Congress, when it specified that burdens must be “substantial,” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.


Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain.

That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives.

Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use; and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be.

Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court suggests, Congress would not have created these exclusions.

Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes.

The ACA’s grandfathering provision allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status.

The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect.


After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets.

Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated.

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?

In sum, in view of what Congress sought to accomplish, i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.


Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee. Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. In contrast, today’s Court dismisses Lee as a tax case.

But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operate to impose the employer’s religious faith on the employees.” No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.

Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. [The dissent recites prior cases where, on religious grounds, business owners sought exemptions allowing them to refuse to: serve black patrons; hire anyone cohabitating with an individual of the opposite sex to whom they were not related or married; photograph a lesbian couple’s commitment ceremony.] Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine ... the plausibility of a religious claim”?

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases ... would have to be evaluated on its own ... apply[ing] the compelling interest-least restrictive alternative test.” Not much help there for the lower courts bound by today’s decision.

The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” The Court, I fear, has ventured into a minefield by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged... substantially in the exchange of goods or services for money beyond nominal amounts.”

For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.

Holt v. Hobbs

574 U.S. 352 (2015)

Justice ALITO delivered the opinion of the Court.

Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a ½–inch beard in accordance with his religious beliefs. Holt’s objection to shaving his beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition.



Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc. RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment.

Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. In making RFRA applicable to the States and their subdivisions, Congress relied on Section 5 of the Fourteenth Amendment, but in City of Boerne v. Flores, this Court held that RFRA exceeded Congress’ powers under that provision.

Congress responded to City of Boerne by enacting RLUIPA, which applies to the States and their subdivisions. RLUIPA concerns two areas of government activity: Section 2 governs land-use regulation and Section 3—the provision at issue in this case—governs religious exercise by institutionalized persons. Section 3 mirrors RFRA and provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” RLUIPA thus allows prisoners “to seek religious accommodations pursuant to the same standard as set forth in RFRA.” Gonzales v. O Centro Espírita Beneficente Uniõ do Vegetal.

Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined “religious exercise” capaciously to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Congress mandated that this concept “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” See Hobby Lobby.


Holt, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which provides that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs: “Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch.” The policy provides that “[f]ailure to abide by [the Department’s] grooming standards is grounds for disciplinary action.”

Petitioner sought permission to grow a beard and, although he believes that his faith requires him not to trim his beard at all, he proposed a “compromise” under which he would grow only a ½–inch beard. Prison officials denied his request, and the warden told him: “You will abide by [Arkansas Department of Correction] policies and if you choose to disobey, you can suffer the consequences.”


Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation. Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner’s belief.

In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, petitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation. The Department’s grooming policy requires petitioner to shave his beard and thus to “engage in conduct that seriously violates [his] religious beliefs.” If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise.


Since petitioner met his burden of showing that the Department’s grooming policy substantially burdened his exercise of religion, the burden shifted to the Department to show that its refusal to allow petitioner to grow a ½–inch beard “(1) was in furtherance of a compelling governmental interest; and (2) was the least restrictive means of furthering that compelling governmental interest.”

The Department argues that its grooming policy represents the least restrictive means of furthering a “ ‘broadly formulated interest,’” namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “‘more focused’” inquiry and “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”—the particular claimant whose sincere exercise of religion is being substantially burdened.’” Hobby Lobby. RLUIPA requires us to “scrutinize the asserted harm of granting specific exemptions to particular religious claimants” and “to look to the marginal interest in enforcing” the challenged government action in that particular context. Hobby Lobby. In this case, that means the enforcement of the Department’s policy to prevent petitioner from growing a ½–inch beard.

The Department contends that enforcing this prohibition is the least restrictive means of furthering prison safety and security in two specific ways.


The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards.

We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a ½–inch beard is hard to take seriously. As noted, the Magistrate Judge observed that it was “almost preposterous to think that [petitioner] could hide contraband” in the short beard he had grown at the time of the evidentiary hearing. An item of contraband would have to be very small indeed to be concealed by a ½–inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a ½–inch beard rather than in the longer hair on his head.

RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest. Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a ½–inch beard actually furthers the Department’s interest in rooting out contraband.

Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband. “The least-restrictive-means standard is exceptionally demanding,” and it requires the government to “show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party.” Hobby Lobby. “If a less restrictive means is available for the Government to achieve its goals, the Government must use it.”

The Department failed to establish that it could not satisfy its security concerns by simply searching petitioner’s beard. The Department already searches prisoners’ hair and clothing, and it presumably examines the ¼–inch beards of inmates with dermatological conditions. It has offered no sound reason why hair, clothing, and ¼–inch beards can be searched but ½–inch beards cannot. The Department suggests that requiring guards to search a prisoner’s beard would pose a risk to the physical safety of a guard if a razor or needle was concealed in the beard. But that is no less true for searches of hair, clothing, and ¼–inch beards. And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard. For all these reasons, the Department’s interest in eliminating contraband cannot sustain its refusal to allow petitioner to grow a ½–inch beard.


The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities. The Department tells us that the no-beard policy allows security officers to identify prisoners quickly and accurately. It claims that bearded inmates could shave their beards and change their appearance in order to enter restricted areas within the prison, to escape, and to evade apprehension after escaping.

We agree that prisons have a compelling interest in the quick and reliable identification of prisoners, and we acknowledge that any alteration in a prisoner’s appearance, such as by shaving a beard, might, in the absence of effective countermeasures, have at least some effect on the ability of guards or others to make a quick identification. But even if we assume for present purposes that the Department’s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circ*mstances present here. The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter. Once that is done, an inmate like petitioner could be allowed to grow a short beard and could be photographed again when the beard reached the ½–inch limit. Prison guards would then have a bearded and clean-shaven photo to use in making identifications. In fact, the Department (like many other States) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during his incarceration.”


In addition to its failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department has not provided an adequate response to two additional arguments that implicate the RLUIPA analysis.

First, the Department has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a ½–inch beard, it permits prisoners with a dermatological condition to grow ¼–inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a ½–inch of hair on their heads. With respect to hair length, the grooming policy provides only that hair must be worn “above the ear” and “no longer in the back than the middle of the nape of the neck.” Hair on the head is a more plausible place to hide contraband than a ½–inch beard—and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah.

In an attempt to demonstrate why its grooming policy is underinclusive in these respects, the Department emphasizes that petitioner’s ½–inch beard is longer than the ¼–inch beard allowed for medical reasons. But the Department has failed to establish (and the District Court did not find) that a ¼–inch difference in beard length poses a meaningful increase in security risk. The Department also asserts that few inmates require beards for medical reasons while many may request beards for religious reasons. But the Department has not argued that denying petitioner an exemption is necessary to further a compelling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” We have rejected a similar argument in analogous contexts and we reject it again today.

Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow ½–inch beards, either for any reason or for religious reasons, but it cannot. “While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.

We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here. Despite this, the courts below deferred to these prison officials’ mere say-so that they could not accommodate petitioner’s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not “assume a plausible, less restrictive alternative would be ineffective.”

We emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security. We highlight three ways in which this is so. First, in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting. Second, if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” Third, even if a claimant’s religious belief is sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.


In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a ½–inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, concurring.

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

Ramirez v. Collier

595 U. S. 411 (2022)

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari.



Pablo Castro worked the night shift at the Times Market convenience store in Corpus Christi, Texas. On July 19, 2004, Castro was outside closing up when Ramirez and an accomplice approached him with a knife. Ramirez stabbed Castro 29 times, searched his pockets, and made off with $1.25. Castro died on the pavement, leaving behind 9 children and 14 grandchildren.

Ramirez fled to Mexico, where he evaded authorities for more than three years. In 2008, he was finally apprehended near the Mexican border. Texas charged Ramirez with murdering Castro in the course of committing or attempting to commit robbery—a capital offense. Ramirez admitted to killing Castro, but denied the robbery that made the murder a capital crime. A jury disagreed, found Ramirez guilty, and sentenced him to death. The Texas Court of Criminal Appeals affirmed Ramirez’s conviction and sentence on direct appeal. Ramirez’s attempts to collaterally attack his conviction in state and federal court also proved unsuccessful.


Texas scheduled Ramirez’s execution for February 2, 2017. Less than a week before that date, Ramirez moved to stay the execution, arguing that his habeas counsel had rendered constitutionally ineffective assistance. The District Court granted a stay, but later rejected Ramirez’s claim. The Fifth Circuit then declined to issue a certificate of appealability. Still, this last-minute litigation had the effect of delaying Ramirez’s execution for several years.

Texas rescheduled Ramirez’s execution for September 9, 2020. Ramirez then asked to have his pastor accompany him into the execution chamber. Prison officials denied the request. They did so because, at the time, Texas’s execution protocol barred all spiritual advisors from entering the chamber. A prior version of the protocol had allowed access for prison chaplains. But Texas employed only Christian and Muslim chaplains. In 2019, when a Buddhist inmate sought to have his spiritual advisor join him in the execution chamber, Texas declined to grant the accommodation. We stayed that execution pending certiorari, unless the State allowed a Buddhist spiritual advisor into the execution chamber. In response, Texas amended its execution protocol to bar all chaplains from entering the execution chamber, so as not to discriminate among religions.

Ramirez filed suit, arguing that Texas’s new execution protocol violated his rights under the First Amendment and RLUIPA. Ramirez’s complaint said that he was a Christian and had received religious guidance from Pastor Dana Moore since 2016. Pastor Moore serves the Second Baptist Church in Corpus Christi, of which Ramirez is a member. Ramirez explained that he wanted his pastor “to be present at the time of his execution to pray with him and provide spiritual comfort and guidance in his final moments.” Ramirez’s complaint focused on prayer and explained that his pastor “need not touch [him] at any time in the execution chamber.”

Texas withdrew Ramirez’s death warrant before there were any further filings. As a result, the parties jointly agreed to dismiss the litigation without prejudice.


On February 5, 2021, Texas informed Ramirez that his new execution date would be September 8, 2021. Ramirez then filed a Step 1 prison grievance requesting that he “be allowed to have his spiritual advisor present in the death chamber.” Texas again denied the request, but later changed course, amending its execution protocol to permit a prisoner’s spiritual advisor to be present in the execution chamber…

Texas’s 2021 Execution Protocol did just that. It allows a prisoner’s spiritual advisor to enter the execution chamber, accompanied by a prison security escort. This accommodation is subject to various procedural requirements. For instance, the prisoner must notify the warden of his choice of spiritual advisor within 30 days of learning his execution date. Additionally, the spiritual advisor must pass a background check and undergo training. And if the spiritual advisor is “disruptive,” he is subject to “immediate removal.” The protocol says nothing about whether a spiritual advisor may pray aloud or touch an inmate for comfort. But Texas had long allowed its own prison chaplains to engage in such activities during executions, and it was against this backdrop that Texas enacted the new policy.


On June 11, 2021, Ramirez filed the grievance that is at the center of this case. Having successfully petitioned the State to allow his pastor into the execution chamber, he requested that his pastor be permitted to “lay hands” on him and “pray over” him while the execution was taking place.

Ramirez’s grievance explains that it is “part of my faith to have my spiritual advisor lay hands on me anytime I am sick or dying.” Texas denied the grievance on July 2, 2021. It said that spiritual advisors are “not allowed to touch an inmate while inside the execution chamber,” though it did not point to any provision of its execution protocol requiring this result.

Ramirez appealed within the prison system by filing a Step 2 grievance on July 8, 2021. But with less than a month to go until his September 8 execution date, prison officials had still not ruled on that appeal. So on August 10 he filed suit in Federal District Court. Ramirez alleged that the refusal of prison officials to allow Pastor Moore to lay hands on him in the execution chamber violated his rights under RLUIPA and the First Amendment. Ramirez sought preliminary and permanent injunctive relief barring state officials from executing him unless they granted the religious accommodation.

On August 16, 2021, Ramirez’s attorney inquired whether Pastor Moore would be allowed to pray audibly with Ramirez during the execution. Prison officials responded three days later that the pastor would not. So on August 22 Ramirez filed an amended complaint seeking an injunction that would allow Pastor Moore to lay hands on him and pray with him during the execution. . . . Ramirez’s merits brief addresses only RLUIPA, however, so we do not consider any standalone argument under the Free Exercise Clause.

We are also mindful that, while we have had full briefing and oral argument in this Court, the case comes to us in a preliminary posture: The question is whether Ramirez’s execution without the requested participation of his pastor should be halted, pending full consideration of his claims on a complete record. The parties agree that the relief sought is properly characterized as a preliminary injunction. Under such circ*mstances, the party seeking relief “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”


[Chief Justice Roberts’s analysis of whether Ramirez’s grievance filings conformed with the statutory requirements of the Prison Litigation Reform Act of 1995 has been omitted.]


Congress enacted RLUIPA, and its sister statute the Religious Freedom Restoration Act of 1993, in the aftermath of our decisions in Employment Division, Department of Human Resources of Oregon v. Smith and City of Boerne v. Flores. Both statutes aim to ensure “greater protection for religious exercise than is available under the First Amendment.”

RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution”—including state prisoners—“even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” A plaintiff bears the initial burden of proving that a prison policy “implicates his religious exercise.” Although RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” a prisoner’s requested accommodation “must be sincerely based on a religious belief and not some other motivation,” The burden on the prisoner’s religious exercise must also be “substantial.” Once a plaintiff makes such a showing, the burden flips and the government must “demonstrate that imposition of the burden on that person” is the least restrictive means of furthering a compelling governmental interest. This allocation of respective burdens applies in the preliminary injunction context.


To begin, we think Ramirez is likely to succeed in proving that his religious requests are “sincerely based on a religious belief.” Ramirez seeks to have his pastor lay hands on him and pray over him during the execution. Both are traditional forms of religious exercise. As Ramirez’s grievance states, “it is part of my faith to have my spiritual advisor lay hands on me anytime I am sick or dying.” Pastor Moore, who has ministered to Ramirez for four years, agrees that prayer accompanied by touch is “a significant part of our faith tradition as Baptists.” And neither the District Court nor the Court of Appeals doubted that Ramirez had a sincere religious basis for his requested accommodations.

Respondents’ argument to the contrary turns in large part on a complaint Ramirez filed in 2020. Ramirez filed the complaint while Texas’s prior execution protocol, which banned all spiritual advisors from the execution chamber, was in place. The complaint sought Pastor Moore’s presence and prayer in the chamber but disclaimed any need for touch. As respondents see things, this shows that Ramirez’s current request for touch is insincere.

Ramirez responds that the 2020 complaint was inaccurate, and that he would have amended it had the litigation continued. The litigation, however, did not proceed, because the parties jointly agreed to dismiss the suit without prejudice less than a week after it was filed. Ramirez’s specific statement in his prior complaint is certainly probative on the issue of sincerity; evolving litigation positions may suggest a prisoner’s goal is delay rather than sincere religious exercise. Under the facts of this case, however, we do not think the prior complaint—dismissed without prejudice and by agreement one week after it was filed—outweighs the ample evidence that Ramirez’s beliefs are sincere. Respondents do not dispute that any burden their policy imposes on Ramirez’s religious exercise is substantial.


Because Ramirez is likely to succeed in showing that Texas’s policy substantially burdens his exercise of religion, respondents must prove that their refusal to accommodate the exercise both (1) furthers “a compelling governmental interest,” and (2) is the “least restrictive means of furthering that compelling governmental interest.” Under RLUIPA, the government cannot discharge this burden by pointing to “broadly formulated interests.” It must instead “demonstrate that the compelling interest test is satisfied through application of the challenged law to the particular claimant whose sincere exercise of religion is being substantially burdened.”

Here, the government has not shown that it is likely to carry that burden.


As for audible prayer, there is a rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding of our Nation. For example, at Newgate Prison—one of London’s most notorious jails—an Anglican priest would stand and pray with the condemned in their final moments. By the early 1700s, that practice had evolved to permit prisoners to be “attended by a minister, or even a priest, of their own communion.” Prayer at the time of execution was also commonplace in the American Colonies. And during the Revolutionary War, General George Washington ordered that “prisoners under sentence of death” “be attended with such Chaplains, as they choose”—including at the time of their execution. These chaplains often spoke and prayed with the condemned during their final moments.

A tradition of such prayer continued throughout our Nation’s history. When, for example, the Federal Government executed four members of the conspiracy that led to the assassination of President Abraham Lincoln, the prisoners were accompanied by clergy of various denominations. These “spiritual advisers” ministered to the condemned, and three spoke public prayers shortly before the prisoners were hanged. And in the aftermath of World War II, the United States Army even permitted Nazi war criminals facing execution to be accompanied by a chaplain, who “spoke” prayers on the gallows in the moments before death.

The practice continues today. In 2020 and 2021, the Federal Bureau of Prisons allowed religious advisors to speak or pray audibly with inmates during at least six federal executions. What’s more, Texas itself appears to have long allowed prison chaplains to pray with inmates in the execution chamber, deciding to prohibit such prayer only in the last several years.

Despite this long history, prison officials now insist that a categorical ban on audible prayer in the execution chamber is the least restrictive means of furthering two compelling governmental interests.

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate’s condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency. We do not doubt that prison officials have a compelling interest in monitoring an execution and responding effectively during any potential emergency. And we recognize that audible prayer could present a more serious risk of interference during the delicate process of lethal injection than during the method of execution (hanging) that was used in most of the historical examples we have cited. But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests.

Indeed, respondents offer only a conclusory defense of the policy’s tailoring. They acknowledge that both the Federal Government and Alabama have recently permitted audible prayer or speech in the execution chamber, but then assert that, “under the circ*mstances in Texas’s chamber, allowing speech during the execution is not feasible.” Respondents do not explain why. Nor do they explore any relevant differences between Texas’s execution chamber or process and those of other jurisdictions. Instead, they ask that we simply defer to their determination. That is not enough under RLUIPA. Nor is there a basis for deference, given that Texas has “historically and routinely allowed prison chaplains to audibly pray” with the condemned during executions, a fact Texas does not dispute.

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” They note that such statements might cause further trauma to the victim’s family or otherwise interfere with the execution. We agree that the government has a compelling interest in preventing disruptions of any sort and maintaining solemnity and decorum in the execution chamber. But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear. Respondents’ argument thus comes down to conjecture regarding what a hypothetical spiritual advisor might do in some future case. “Such speculation is insufficient to satisfy” respondents’ burden, an